SUMMARY
JURISDICTIONAL POINTS – Claim in time and effective date of
termination
There was no basis for interfering with the decision of the
Employment Judge that the Claimant’s claims for discrimination on grounds of
age or race were presented out of time and that it was not just and equitable
to extend time.
HIS HONOUR JUDGE SEROTA
QC
Introduction
1.
I shall refer to the parties as the Claimant, the First Respondent
either as “Mouchel” or as “the Respondent”, and to the Second Respondent as “Mr
Clark”.
2.
This is an appeal by the Claimant from a decision at a Pre‑Hearing
Review (PHR) of the Employment Tribunal at Watford,
Employment Judge Manley sitting alone. The Judgment is dated 20
June 2011 and the reasons 12 August 2011.
3.
The Employment Tribunal concluded that the Claimant’s claims of age and
race discrimination had been presented out of time and it was not just and
equitable to extend time. The Notice of Appeal was filed on
22 January 2011; that is, before the reasons of the Employment
Tribunal had been made available. On 1 November 2011
HHJ McMullen QC stayed the appeal for 21 days to enable the Claimant
to lodge a revised Notice of Appeal in the light of the reasons of the
Employment Judge. On 14 February 2011 the appeal was referred to a full
hearing by HHJ McMullen QC.
The factual background
4.
I take this largely from the decision of the Employment Tribunal.
5.
The Claimant is of black Afro‑Caribbean ethnicity. He was a
housing officer, originally with the London Borough of Hackney, but in 1998 by
reason of a Transfer of Undertakings
(Protection of Employment) Regulations (TUPE) transfer his
employment transferred to Mouchel as from 1 April 2004. At the time
of the hearing he had been transferred to Hackney Homes. Mr Clark was his line
manager and of similar ethnicity.
6.
On 20 August 2009 Mouchel introduced a new computer system to
be operated from September 2009. The Claimant claims to have sought
training from mid‑2009 until 21 January 2010 but was refused.
In January 2010 Mr Clark invited the Claimant to a capability meeting. A
formal capability hearing took place on 8 April 2010, after which on
9 April 2010 Mouchel issued a first written warning for
unsatisfactory performance. The Claimant appealed; on 6 May 2010 his appeal
was dismissed, but his neighbourhood manager arranged for him to have additional
training.
7.
On 7 May 2010 the Claimant raised a grievance, in which he alleged
discrimination on the grounds of race and age against Mr Clark. On
11 June 2010 there was a grievance hearing, and the Claimant was
informed on 14 June 2010 that his grievance had been dismissed. The
following day, 15 June 2010, the Claimant went on sick leave
suffering from anxiety and stress. On 23 June 2010 he appealed
against the grievance decision. On 8 October 2010 he was informed of
the initial outcome of the grievance appeal, which was dismissed. On
16 November 2010 Mouchel provided the final grievance appeal outcome,
namely that the Claimant’s appeal was not upheld. On 6 December 2010 the
Claimant issued his ET1 alleging discrimination on the grounds of race:
(i) that he was required by the
letter of 21 September 2009 to attend a capability meeting on
2 October 2009;
(ii) the holding of the meeting of
21 January 2010; and
(iii) the issue of the final warning
of 30 April 2010.
8.
Ground (i) is the only ground to appear clearly in the ET1, but
grounds (ii) and (iii) were among the issues identified by the Employment
Tribunal at a case management discussion (CMD) on 21 March 2011 and
no point has been taken that grounds (ii) and (iii) were not in the ET1.
9.
In so far as age discrimination is concerned, it was alleged that the
Claimant had suffered discrimination on the grounds of his age when his request
for extra training on the new computer system between mid‑2009 and
21 January 2010 was refused and the granting of his request on
21 January 2010 without in fact Mouchel providing him with extra
training.
10.
In their ET3 of 4 January 2011 Mouchel and Mr Clark
denied any discrimination; the issue of the absence of any continuing act being
alleged was raised, and it was asserted that the claims were out of time.
11.
At the CMD an issue was identified in the following terms: did any of
the allegations of less favourable treatment occur after
7 September 2010, or did they comprise part of an act extending over
a period that extended after that date; or, if not, whether it was just and
equitable to extend time to allow the Tribunal to give a remedy for such acts.
The decision of the Employment Tribunal
12.
The Employment Tribunal identified the issues as I have set them out
above, and it then set out the relevant facts having heard evidence. So far as
the law was concerned, the Employment Judge noted that applications to extend
time in cases such as this were common.
13.
The Claimant submitted that he had been waiting for the result of his
internal grievance proceedings and the refusal of his grievance appeal was part
of a continuing act. If this were not so, he submitted, it would be just and
equitable to extend time.
14.
At the Employment Tribunal the Claimant was represented by a solicitor,
Mr E Valentine, who I believe was a cousin. Mr Valentine also
assisted in the preparation of the ET1.
15.
The Respondent submitted that there was no continuing act, the
proceedings were presented out of time, and the Claimant had the burden of
showing that it was just and equitable to extend time.
16.
The Employment Tribunal in relation to just and equitable extensions of
time referred itself to British Coal Corporation v Keeble
[1997] IRLR 336, which suggested that the discretion to extend time was as wide
as that given to civil courts by section 33 of the Limitation Act
1980, to which it directed itself. It also directed itself correctly that
there was no legal requirement on a Tribunal to go through the list in
section 33 in every case provided that no significant factor was left out
of account in the exercise of its discretion. It directed itself as to the
relevance of internal proceedings by reference to Robinson v The
Post Office [2000] IRLR 804. In relation to consideration of whether
an act extended over a period the Employment Judge directed herself by
reference to Commissioner of the Police
for the Metropolis v Hendricks [2003] IRLR 96 and
observed that Tribunals were reminded to focus on the substance of the
complaints and whether there was an ongoing state of affairs or a series of
unconnected matters.
17.
I draw attention to paragraph 11 of the decision:
“Although that does not seem to have been expressly stated at
the case management discussion and there is no issue about the grievance in the
claim form, what is said on the claimant’s behalf today is that the claimant
was waiting for the outcome of the grievance appeal, which he received in
November, that forms part of an act extending over a period and therefore the
claim is in time. Mr Valentine submits in the alternative, that if the
claim is not in time, I should exercise my discretion on just and equitable
grounds.”
18.
The Employment Tribunal concluded as follows, having rejected the case
that the Claimant had complained about a continuing act so as to bring his claim
within time:
“13. The first question is whether it can be said that the
claimant is complaining about something which is a continuing act up to a date
within three months of him having presented the claim form. I do not accept
that this is what the claimant has been arguing. It is clear from that CMD
note and, indeed from the evidence I have heard, that the claimant’s complaint
is about Mr Clark instituting capability proceedings in late 2009, issuing
a first written warning in April 2010 and questions that were raised
around training for the new computer system in early 2010. Although I accept
that the claimant subsequently put in a grievance about this matter, he does
not complain about those who dealt with his grievance and, indeed, it might be
difficult for him to do so, given the various ethnic origins of those decision‑makers,
including one particular decision‑maker who is of the same ethnic
background as the claimant. The claimant makes no complaint about it in his
claim form, nor has there been an application to amend that claim form to
include a direct complaint. I can not see any basis upon which the claimant
could suggest there is an act extending from when decisions were taken in early
2010 to the end of that grievance procedure.”
19.
The Employment Judge then went on to consider whether it was just and
equitable to extend time. The Employment Judge accepted she had a wide
discretion to do whatever she thought was just and equitable in the
circumstances and to take into account a number of factors. She reminded
herself that the discretion was one that should be exercised as the exception
rather than the rule, because time limits in Employment Tribunals were strict
and the discretion should only be exercised in limited circumstances, the onus
of proof being firmly on the Claimant. She directed herself to the factors she
should take into account, such as the length of and reason for any delay, and
in broad terms the relative prejudices between the respective parties to the
proceedings. She took into account a number of factors on the Claimant’s
behalf (paragraph 14):
“Firstly, he has told me that he took advice from the trade
union with respect to delaying any claim to the Employment Tribunal, but there
is very little evidence of this in any of the contemporaneous notes and it does
not seem to have been suggested by him until today’s Hearing. In any event,
the claimant is a person who is well aware of discrimination legislation and,
indeed, of employment tribunals, having himself been a race relations officer.
I note that the claimant was very aware in October 2010 of employment
tribunals when he mentioned them in a letter to the respondent. I am not
satisfied that he had any advice to delay presenting his claim and it is not
just and equitable for me to extend time on those grounds.”
20.
She then went on to consider the Claimant’s health over the period. She
recognised the Claimant was away from work and appeared from the medical
reports to have been quite unwell with depression and anxiety. However, she
noted this did not prevent him writing a submission to the Respondent with
respect to his grievance, which went to some pages and was “very detailed
indeed”. It seemed to the Employment Judge that if the Claimant was able to do
that, he was able to consider taking his claim to the Employment Tribunal and
doing it either within time or certainly before December 2010. She
continued (paragraph 15):
“There is a clear prejudice to the claimant in not extending
time as his claim cannot proceed but I have weighed that against that of the
respondent being required to meet a claim the origins of which extend back to
before September 2009. I have taken all these matters into account and I
do not believe that it is just and equitable for me to extend time.”
21.
Accordingly, she held that the Employment Tribunal had no jurisdiction
to hear the claims because they had been presented outside the three‑month
time period, and as she did not exercise her discretion to allow them to
proceed they had to be dismissed.
The Claimant’s case
22.
The appeal has been argued solely on the basis of discrimination on the
grounds of race. It was submitted, firstly, that the claim was not out of
time. There was continued discrimination in the way the grievance was disposed
of, and the grievance was only concluded on 16 November 2010 and the
ET1 was issued well within the three‑month time limit on
6 December 2010. It was submitted that the Employment Judge was
under a duty to look beyond 7 September 2010 to see if there was any further
act of discrimination that the Claimant might rely upon. The Claimant
complained that the officer who conducted the grievance proceedings, Mr Nikoi
(who was of the same ethnicity as the Claimant and Mr Clark), should not
have conducted the grievance investigation as he worked closely with
Mr Clark. This allegation had been rejected.
23.
The Employment Judge misunderstood the case, which was not limited to
claims against Mr Clark but included claims against the Respondent,
Mouchel. The Claimant lodged an amended Notice of Appeal in which he
maintained that before the Employment Tribunal he had raised a complaint about
the grievance officer. There is no suggestion in the decision of the
Employment Tribunal that this was so.
24.
The Claimant went on to submit that the Employment Judge fell into error
in relation to her determination that there was no continuing act alleged
because it was not necessary to specifically plead there was a continuing act,
although what had to be pleaded should be capable of being such an “ongoing
state of affairs”. There was sufficient material in the ET1 to support this,
although it was conceded by Mr Rahman, who appeared before me on behalf of
the Claimant, that there was no reference to the grievance procedure at all in
the ET1. It was submitted that the grievance complaints could be taken as acts
both of discrimination and victimisation. There was no need to complain about
specific officers, as all they did was to “rubber‑stamp” Mouchel’s
express or implied policies of discrimination, “which can be established during
a substantive hearing”.
25.
In relation to the refusal of the Employment Judge to exercise her
discretion to extend time, it was submitted that she ignored the evidence that
the Claimant had been advised by his trade union to await the end of the
grievance proceedings. It was an error of law for the Employment Judge not to
believe the Claimant, and the Employment Judge had punished him for the wrong
advice he had received from his trade union or his representative at the CMD.
It was wrong for the Employment Judge to hold against the Claimant the fact he
was familiar with Employment Tribunals because he was a race relations officer;
this matter was not pursued in cross‑examination or submissions. Had it
been raised, the Claimant would have said his knowledge was limited to issues
arising out of housing.
26.
It was then submitted that the Employment Tribunal had been wrong to
ignore the medical evidence.
27.
The decision of the Employment Judge on the balance of prejudice was
perverse, and she only paid lip service to considering the balance of
prejudice. It was also said that the Employment Judge had been influenced by a
perceived lack of merit in the Claimant’s case that was inadmissible approach;
reference was made to Ezsias v North Glamorgan NHS
Trust [2007] EWCA Civ 330 and Reilly v Tayside Public Transport
UKEATS/0065/10, which were authority for the proposition that an application to
strike out a claim on the basis that it was likely to fail should not be made
where there were disputed issues of fact. The grounds of appeal were said to
be cumulative.
The Respondent’s response and submissions
28.
Mr Edwards firstly suggested that the Claimant was not in fact
making any allegation of error of law; his appeal was simply based on
disagreement with the findings of the Employment Judge. In so far as the
grievance procedures were concerned, the Employment Judge at paragraph 13
did not accept that the Claimant had been arguing there had been a continuing
act and that the Claimant’s complaint had been about Mr Clark instituting
capability proceedings in late 2009, issuing the first written warning in 2010,
and questions raised around the training for the new computer system in 2010. The
Employment Judge had accepted that although the Claimant subsequently put in a
grievance he did not complain about those who dealt with the grievance; she
observed it might be difficult to do so by reason of their ethnicity in any
event. There was no contradiction or confusion in the way the matter was dealt
with by the Employment Judge, who was entitled to conclude that there was no
continuing act of discrimination and that one had not been raised by the
Claimant in his ET1. The issues for determination identified at the CMD and by
the Employment Judge at the beginning of her Judgment did not include the
question of whether the handling of the grievance was discriminatory. Issues
as to a discriminatory policy had not been raised by the Claimant.
29.
Mr Edwards maintains that at the Employment Tribunal he submitted
that the issue of the grievance proceedings being conducted in a discriminatory
manner was not pleaded, had not been identified at the CMD or at the outset of
the PHR, and that if the Claimant wished to pursue this as an allegation of discrimination,
an application to amend would be necessary; no such application was made by the
Claimant’s solicitor.
30.
The Employment Judge did consider the Claimant’s case he had received
incorrect advice from his trade union; however, she rejected that evidence
because there was very little evidence of this in any of the contemporaneous
notes, it was not suggested by the Claimant until the hearing, and she was not
satisfied that any such advice was given.
31.
The question of declining to extend time was essentially a matter of
discretion, and there were no grounds to reverse the decision of the Employment
Judge; reference was made to the Judgment of Auld LJ in Robertson
v Bexley Community Care [2003] IRLR 434, to which I shall
come in due course. The fact that the Claimant had been a race relations
officer was only a factor relied upon by the Employment Judge but did not form
a central part of her decision.
32.
The medical advice was taken into account by the Employment Judge.
Finally, it was inappropriate to go through the Judgment of the Employment
Judge with a fine‑tooth comb, with reference being made to the decision
of Elias J, as he then was, in Aslef v Brady
[2006] IRLR 576.
The law
33.
I now turn to the law, and I start with those authorities relating to
the exercise of discretion by an Employment Tribunal and challenges to its
findings of fact.
34.
There are numerous authorities, but it is helpful firstly to have regard
to the Judgment of Wall LJ in Canadian Imperial Bank of Commerce v Beck
[2009] IRLR 740 at paragraph 23:
“23. As to the correction of an error of law
committed by a judge who is exercising a judicial discretion, the law is
equally clear. The leading case is G v G [1985] 1 WLR 647,
which contains references to the well-known judgment of Asquith LJ in Bellenden
(formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345. For
an appeal to succeed, the exercise of discretion which is challenged must, in
Asquith LJ's words: ‘exceed the generous ambit within which reasonable
disagreement is possible’.
24. There is no particular magic in the fact that we are here
dealing with an appeal from the ET to the EAT and then to this Court. G v G
principles apply in the instant case as they would apply to any other appeal
which involves the exercise of a judicial discretion.”
35.
In Chief Constable of Lincolnshire Police v Caston
[2010] IRLR 327, Longmore LJ observed that appeals on the exercise of
discretion to the EAT should be rare:
“I agree and would only reiterate the importance that should be
attached to the EJ's discretion. Appeals to the EAT should be rare; appeals to
this court from a refusal to set aside the decision of the EJ should be rarer.
Allowing such appeals should be rarer still.”
36.
The difficulty of mounting a successful appeal against errors of fact is
made clear in the Judgment of Browne‑Wilkinson J in Ellett v Welsh Products Ltd
UKEAT/0652/82:
“[…] our jurisdiction is limited to correcting errors of law
only. An error of law can be shown if a tribunal has failed to make a finding
of fact as to which there was uncontroverted evidence, or has made a finding of
fact contrary to all the evidence. It is equally clear that there is no error
of law where there is some evidence pointing in one direction and some evidence
pointing in the other direction, and the industrial tribunal has preferred one
set of evidence to the other. A finding contrary to the weight of the evidence
is not a question of law. Mr Ellett has shown, in the course of addressing us
today, that he is saying the evidence was overwhelming in showing that he was
not incapable of carrying out his duties as a salesman, and that therefore a
decision that he was fairly dismissed for incapability could not be a right
decision. This is manifestly not the case. There plainly was some evidence on
which the tribunal could have reached the conclusion that Mr Ellett was
reasonably dismissed for incapability. The tribunal took the view, on
evidence, that the material question was button sales; that, as was common
ground, in the year 1979 Mr Ellett had not achieved his button sales target and
that he was not challenging the system whereby the target had been set. It is
only necessary to state that he failed to reach a target reasonably set to show
that there was some evidence sufficient to support a finding that the dismissal
was for incapability. It is not a question of law simply to show that there
was far more evidence pointing in the opposite direction. It is for the
industrial tribunal to make its decision as to the weight of the evidence and
to make the findings as to what the position was.”
37.
It is also helpful to note what Elias J had to say in Brady,
referred to by Mr Edwards:
“The EAT must respect the factual findings of the employment
Tribunal and should not strain to identify an error merely because it is
unhappy with any factual conclusions; it should not ‘use a fine toothcomb’ to
subject the reasons of the Employment Tribunal to unrealistically detailed
scrutiny so as to find artificial defects; it is not necessary for the Tribunal
to make findings on all matters of dispute before them nor to recount all the
evidence, so that it cannot be assumed that the EAT sees all the evidence; and
infelicities or even legal inaccuracies in particular sentences in the decision
will not render the decision itself defective if the Tribunal has essentially
properly directed itself on the relevant law.”
38.
The reluctance of courts or the EAT to interfere with case management
decisions is well known; see, for example, Lawrence Collins LJ in Walbrook Trustee (Jersey) Ltd v Fattal
[2008] EWCA Civ 427 at paragraph 33. In Ma v Merck Sharp and Dohme
[2008] EWCA Civ 1426 Mummery LJ observed, in relation to the decision of
the Employment Tribunal to limit or exclude on time‑limit grounds some of
the complaints:
“I am also of the view that this court should not be
hyper-critical or over-analytical in its treatment of tribunal decisions which,
even if not themselves technically discretionary case management issues, are
closely connected to the practical management of complex or intractable
litigation. After all it is the ET and not the Court of Appeal that is going
to try the case. That said, however, there are features in the present case
that have led me to the conclusion that a question of law does arise from the
decision of the ET to limit or exclude from the substantive hearing on time
limit grounds some of Dr Ma’s complaints and evidence of them, and that there
should be some variation in the ET’s order.”
39.
I now turn to consider the relevant factors in deciding whether or not
to extend time. It was held by the Court of Appeal in Steeds v Peverel Management Services
[2001] EWCA Civ 419 that the failure of a legal advisor to issue a claim in
time should not be visited on the client who made an application to extend time
to commence proceedings but was only a factor, albeit an important one, to be
considered among other factors, such as prejudice to both sides.
40.
In Robertson in a passage relied upon by Mr Edwards
Auld LJ said at paragraph 25:
“It is also of importance to note that the time limits are
exercised strictly in employment and industrial cases. When tribunals consider
their discretion to consider a claim out of time on just and equitable grounds
there is no presumption that they should do so unless they can justify failure
to exercise the discretion. Quite the reverse. A tribunal cannot hear a
complaint unless the applicant convinces it that it is just and equitable to
extend time. So, the exercise of discretion is the exception rather than the
rule. It is of a piece with those general propositions that an Appeal Tribunal
may not allow an appeal against a Tribunal's refusal to consider an application
out of time in the exercise of its discretion merely because the Appeal
Tribunal, if it were deciding the issue at first instance, would have formed a
different view. As I have already indicated, such an appeal should only
succeed where the Appeal Tribunal can identify an error of law or principle,
making the decision of the Tribunal below plainly wrong in this respect.”
41.
I now turn to deal with the law relating to acts extending over a
period. Section 68 of the Race Relations Act sets out a
time limit of three months from the act complained of in which proceedings have
to be commenced; however, by virtue of section 68(7)(b), “any act
extending over a period shall be treated as done at the end of that period”. This
term is not defined but has been considered in a number of cases, such as Hendricks,
where Mummery LJ, which whom May and Judge LJJ agreed, said at
paragraph 48:
“On the evidential material before it, the tribunal was entitled
to make a preliminary decision that it has jurisdiction to consider the
allegations of discrimination made by Miss Hendricks. […] She is, in my view,
entitled to pursue her claim beyond this preliminary stage on the basis that
the burden is on her to prove, either by direct evidence or by inference from
primary facts, that the numerous alleged incidents of discrimination are linked
to one another and that they are evidence of a continuing discriminatory state
of affairs covered by the concept of an ‘act extending over a period’, in which
in that case female PCs treated less favourably […].”
42.
He continued at paragraph 52:
“[…] the focus should be on the substance of the complaint made
that the Commissioner was responsible for an ongoing situation or a continuing
state of affairs in which female ethnic minority officers in the service were
treated less favourably. The question is whether that is ‘an act extending
over a period’ as distinct from a succession of unconnected or isolated
specific acts, for which time would be given to run from the date when each
specific act was committed.”
43.
It is clear there is no need to specifically plead that there has been a
continuing act of discrimination; see Aziz v First Division Association
[2010] EWCA Civ 304, and Khetab v Age Medical UKEAT/0313/10 (HHJ Peter Clark).
However, in that case HHJ Peter Clark concluded that:
“In my judgment Mr Park is correct in submitting that on its
face and read as a whole, the lengthy ET1 particulars of claim sufficiently
identify a series of alleged incidents said to be racially or religiously
motivated in the non-Nagarajan [v London Regional Transport
[1999] ICR 877] sense, which are linked not least by the omnipresence of
the Second Respondent Mr Paul Hodge.”
44.
I gratefully adopt HHJ Peter Clark’s formulation and pose
myself the question in the present case as whether the ET1 on its face and read
as a whole sufficiently identifies a series of alleged incidents said to be
racially motivated and continuing after 7 September 2010. I note
that in Khetab the Employment Tribunal had concluded that the ET1
did not raise a question of there having been a continuing act on the facts;
nevertheless, the proceedings were still commenced out of time, but it was
appropriate to extend the time on the just and equitable ground.
45.
There are also helpful dicta in London Borough of Southwark v Afolabi
[2003] IRLR 124 at paragraphs 49 and 50 in the Judgment of Peter Gibson LJ:
“[…] that it is not for the ET to find for a complainant on a
complaint which is not pleaded and to give a remedy for that complaint. The
fact that in a Witness Statement, not a pleading, Mr Afolabi at the start of
the hearing asked for the subsequent job movements of Ms Draper and Mr Jordan
to be ‘noted’ does not convert the defined issue which is pleaded into a
different pleading to include the Witness Statement. Even in that Witness
Statement Mr Afolabi repeats: ‘I conclude that the evaluation exercise did not
comply with equal opportunities practice, and it is in fact an act of
discrimination’.
50. It would of course have been open to the ET
to invite Mr Afolabi to apply to amend his pleadings, subject to hearing
Southwark's objections to such late amendment. But that was not done.”
46.
The decision in Chapman v Simon [1994] IRLR 124 is
authority for the proposition that an Employment Tribunal has no jurisdiction
to entertain a claim that has not been pleaded, and in Ahuja v Inghams
[2002] EWCA Civ 1292 the Court of Appeal held that if a claim is not pleaded
even though it has been argued and evidence led in relation to it, in the
absence of the case being pleaded the Employment Tribunal has no jurisdiction
to entertain it.
Discussion
47.
I bear in mind the importance of respecting the findings of fact of the
Employment Tribunal in the absence of perversity, equally respecting the
Employment Tribunal’s exercise of discretion. I also have regard to the
importance of not subjecting the decision of the Employment Tribunal to an
inappropriate degree of scrutiny. I also assume, unless clearly shown to the
contrary, that if the Employment Judge correctly directed herself, she should
be taken to have followed her own self‑direction.
The continuing act point
48.
There is clearly no need to specifically plead a continuing act;
however, sufficient facts must be pleaded from which it is clear that a
continuing act is asserted. I posed to myself the question of whether this ET1
on its face and read as a whole sufficiently identifies a series of alleged
incidents said to be racially motivated and continuing after
7 September 2010. The pleaded case, even as supplemented by the
Employment Tribunal’s list of issues, remains limited to the disciplinary
proceedings initiated by Mr Clark, namely: the requirement by the letter
of 21 September 2009 that the Claimant should attend a capability meeting;
secondly, the holding of that meeting on 21 January 2010; and
thirdly, the issue of the written warning of 30 April 2010.
49.
As observed by the Employment Judge there is no reference at all to the
grievance in the ET1 let alone the manner in which the grievance procedure was
said to be discriminatory.
50.
Following Afolabi, it is not for the Employment Tribunal
to find a complaint that has not been pleaded. The Claimant was aware of the
point at the hearing before the Employment Judge and failed to take the
opportunity to seek permission to amend. A witness statement and oral evidence
are not substitutes for a pleading. I reject the submission that the
Employment Judge was under a duty to look beyond 7 September 2010 to
see if any further act of discrimination could be relied upon by the Claimant.
I bear in mind that the Claimant was represented by a solicitor.
51.
I have seen nothing to suggest that the Claimant maintained before the
Employment Judge in evidence or submissions that the persons conducting his
grievance were simply rubber‑stamping Mouchel’s express or implied
policies of discrimination. In any event, this is contrary to what the
Employment Judge said as to the manner in which the Claimant presented his case
and would not meet the failure to plead this point.
The extension of time point
52.
In relation to the extension of time, the Employment Tribunal directed
itself correctly. I bear in mind the importance of recognising there is no
presumption that an Employment Tribunal should extend time on just and
equitable grounds; rather, that the exercise of that discretion is the
exception rather than the rule. A very strong case is required to show that
there has been a flawed exercise of discretion on its merits, as opposed to on Wednesbury
criteria. The fact is also that the Claimant’s evidence was not accepted as to
the effect of his health issues on his ability to present the claim in time and
the advice he received from his trade union. In relation to the health issue
the Employment Judge considered there was insufficient evidence to persuade her
to exercise her discretion; although she accepted he suffered from depression
and anxiety, he was nonetheless able to write detailed submissions in his
internal grievance proceedings, so he was not so disabled as to be unable to
file an ET1 within time.
53.
I accept that the advice allegedly given by the trade union should not
be held against the Claimant, but the Employment Tribunal does not appear to
have done so. The Employment Judge simply did not accept the Claimant had been
advised by his trade union to delay the proceedings until his internal
grievance had run its course. I note that this assertion was not supported by
his trade union, and the Employment Judge concluded that there was very little
evidence of it in any of the contemporaneous notes and it did not appear to
have been suggested by the Claimant until the day of the hearing. Mouchel
points out that he did not rely upon advice from his trade union in his witness
statement which was to the effect that by reason of his illness he found it
hard to go through the process coupled with the fact his concentration was
impaired and he was not able to focus properly on the case.
54.
The failure to accept the Claimant’s evidence is not an error of law.
The Claimant was not punished for the error of his trade union or solicitors;
his evidence was not accepted. Any defect in his original pleading that may
have been caused by his solicitor – and there is no evidence that it was –
could have been cured by seeking permission to amend.
55.
The relevance of the Claimant’s past Employment Tribunal experience was
a matter for the Employment Judge.
Other matters
56.
I do not see that the Employment Judge was in any sense influenced by
the merits or otherwise of the Claimant’s case; she decided the matter on the
basis that there was no reliance on the grievance procedure as being part of
the discrimination claim in the ET1 so there were no facts pleaded from which a
continuing act of discrimination after 7 September 2010 might be discerned. Accordingly
there was no jurisdiction to entertain the claim, and in her discretion she
refused to extend time.
57.
The Employment Judge clearly exercised a discretion and weighed up
various factors in paragraphs 14 and 15 of her decision,
including the balance of prejudice. It is impossible to say that her exercise
of discretion was plainly wrong.
Conclusion
58.
For these reasons, the appeal fails. I express my gratitude to counsel
for their helpful oral and written submissions.
