United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0410/14/RN

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                                At the Tribunal

                                                                                                                On 21 May 2015

                                                                           Judgment handed down on 18 June 2015

 

 

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

 

 

 

 

 

OXFORDSHIRE COUNTY COUNCIL                                                                APPELLANT

 

 

 

 

 

MS E MEADE                                                                                                       RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR ANDREW MacPHAIL (of Counsel) Instructed by: Oxfordshire County Council Legal Services County Hall New Road Oxford OX1 1ND
For the Respondent	MR MARK EMERY (Solicitor) Withy King North Bailey House New Inn Hall Street Oxford OX1 2EA

 

 

SUMMARY

JURISDICTIONAL POINTS - Claim in time and effective date of termination

 

For a continuing act, the incidents complained of must (following a full merits hearing) be unlawful.  The Employment Tribunal fell into error in finding a series of continuing acts which included incidents permissibly found not to be unlawful.

 

Accordingly the employer’s appeal was allowed and the claims dismissed as time-barred.  The Claimant’s perversity cross-appeal was dismissed.

 

HIS HONOUR JUDGE PETER CLARK

 

1.                  This case has been proceeding in the Reading Employment Tribunal.  The parties are Ms Meade, Claimant, and Oxfordshire County Council, Respondent.

 

2.                  From 1 June 2010 the Claimant was employed by the Respondent as a Social Inclusion Officer (“SIO”).  She remained so employed at the time of lodging her form ET1 at the Employment Tribunal on 11 June 2013.  She there complained of detrimental treatment under section 47B Employment Rights Act 1996 (the whistle-blowing claims) and victimisation contrary to section 27 of the Equality Act 2010 (the victimisation claims).  By their form ET3 defence as amended the Respondent denied those claims and raised limitation issues by the time the case came on for a full hearing before an Employment Tribunal chaired by Employment Judge Salter sitting on 28 April to 1 May 2014.  The Employment Tribunal reserved Judgment, deliberated in chambers on 19 May and delivered their Judgment with Reasons on 4 June 2014.  The claims were upheld in part.  Against that Judgment the Respondent appealed and the Claimant cross-appealed.  Those appeals were considered on the paper sift by Langstaff P and HHJ Eady QC respectively.  As a result of that process, the respective appeals were pared down so that the Respondent’s appeal proceeds to this Full Hearing on grounds 1, 2C, 3 and 4 and the Claimant’s cross-appeal on grounds 1, 2 and 3.  Broadly, the appeals raise questions of limitation and causation.

 

The Facts

3.                  The Employment Tribunal, having heard evidence from the Claimant and four witnesses for the Respondent and having considered the documentary evidence to which they were referred, made the following findings of fact material to the issues raised in the appeals.

4.                  In December 2011 the Claimant applied for a new post advertised by the Respondent for a Senior SIO (“SSIO”).  She was not short-listed for the post but her colleague, Ms Sharon Oliver was short-listed even though she, Ms Oliver, did not appear to meet the essential criteria in relation to qualification.  The Claimant did meet those criteria.  The recruitment exercise involved the Claimant’s line manager, Mr Iain Watson.  He left the employment on 31 January 2013.  He did not give evidence before the Employment Tribunal.

 

5.                  On 3 January 2012 the Claimant raised a grievance concerning Mr Watson’s “biased handling” of the SSIO recruitment exercise.  She alleged that he had ignored equal opportunities and conspired to ensure a particular applicant gains the post and knowingly placed the Claimant as an applicant at a disadvantage.  She stated that she believed she should also be whistle-blowing on Ms Oliver who, according to the Claimant, was knowingly a party to the process.  I am told, although it is not spelled out in the Employment Tribunal’s Reasons, that the Claimant self-describes as black English, Ms Oliver is described as Anglo-Asian and Mr Watson as white English.

 

6.                  Mr Watson responded to the grievance on 11 January 2012.  On 16 January, the Claimant met with Mr Watson and indicated by letter that she had decided to proceed to stage 1 of her grievance.  She mentioned whistle-blowing.

 

7.                  On 18 April 2012 the Claimant wrote to Human Resources raising grievances against Ms Oliver and her SIO colleague Darren Utonagan, complaining about their behaviour and stating that she was being subjected to “racial prejudice”.  The Respondent conceded that that letter constituted a protected act for the purposes of her victimisation claim and was a protected disclosure.

8.                  The Claimant’s grievance was rejected by Sandra Higgs in a report dated 26 March 2012.  On 24 April 2012 the Claimant went off sick with work-related stress.  She did not return to work until 18 June 2013.  She has since resigned from the employment in January 2014, I am told.

 

9.                  On 17 May 2012 Mr Watson made a note of what is described as a threatening phone call which he received, he said, at 9.26 am.  He attributed the call to the Claimant and informed Sue Corrigan, asking for her advice.  The Claimant denied making the phone call in an email of 23 May complaining of bullying by members of her team (including Mr Watson) accompanied by racial motivation.

 

10.              On 22 May 2012 Ms Corrigan appeared to suspend the Claimant in light of the Watson phone call (paragraph 26).  That “suspension” pending possible disciplinary proceedings ended on 30 May (paragraph 31).

 

11.              On 7 June 2012 Occupational Health reported that she could return to her current post provided she was not working alongside people she felt aggrieved by.  On 8 June her GP said that she might be fit for work when the Occupational Health recommendation had been put in place.

 

12.              A redeployment opportunity at Meadowbrook was considered by the Claimant to be unsuitable on 10 July.

 

13.              On 31 July 2012 an independent investigator, Ms Rogerson, produced a report upholding the Claimant’s complaint in part, but finding no racial motivation by other employees.  The report records an apology from Mr Watson for saying that the Claimant had threatened him, although it is not clear whether that related to the 17 May phone call.  A copy of that report was provided to the Claimant by Ms Corrigan on 2 August.  Her complaints were upheld in part.

 

14.              The Claimant’s last sick note was dated 8 June 2012.  However, her return to work was dependent on finding her a role which did not involve working with those against whom she had complained.  By agreement she was treated as being on special paid leave after 28 September 2012.  Thereafter it was agreed that a mediation process was necessary.

 

15.              The Claimant indicated that she would be returning to work on 7 January 2013.  However, the Respondent indicated that it was not a reasonable position to adopt before mediation was complete.  The forms of mediation are described as legal and workplace mediation.  She was informed that if she attended for work she would be formally suspended pending mediation.  By this time solicitors for the Claimant had become involved.

 

16.              After Mr Watson left on 31 January Ms Oliver withdrew from the mediation on 11 April 2013 and transferred to another job within the Respondent.

 

17.              On 22 April 2013 the Claimant’s GP certified that she had been unfit for work during the past year due to stress-related symptoms arising from difficulties at work.  Following a mediation settlement with Darren Utonagan and an Occupational Health report dated 23 May 2013 the Claimant began a phased return to work on 18 June 2013, one week after presenting her form ET1 to the Employment Tribunal.

 

The Employment Tribunal’s Conclusions

18.              In relation to the Claimant’s allegations of whistle-blowing detriments (paragraph 3(a)-(g)) repeated (save for paragraph 3(b)) as allegations of victimisation (paragraph 6(a)-(f)), the Employment Tribunal found that the first allegation (paragraph 3(a)), namely the “threatening” call to Mr Watson of 17 May 2012, was out of time and time should not be extended.  However, they concluded that allegations 3(b)-(g) formed part of a series of continuing acts which rendered them in time (paragraph 98).  They reached a similar conclusion in relation to the victimisation claims (paragraph 100).

 

19.              The Claimant’s letter of 18 April 2012 was a protected disclosure.  Her suspension unrelated to the 17 May “threatening” phone call until the end of September and non-attendance at the training day in September amounted to detriments on grounds of that protected disclosure.  However, from September 2012 she suffered no detriment attributable to the protected disclosure; the cause was the failure of the parties to reach agreement (paragraph 116).

 

20.              The Employment Tribunal reached precisely the same conclusions in relation to the victimisation claims (paragraph 117).

 

The Appeals

21.              It is common ground that, in order to form part of a continuing act for the purposes of both the whistle-blowing and victimisation claims, the acts relied upon must be unlawful.  The Employment Tribunal appear to have overlooked this essential ingredient when holding that the events after September 2012 formed part of a series of continuing acts.  On their findings, no unlawful acts were committed by the Respondent after September 2012.  That was plainly an error of law.

 

22.              The Claimant seeks to challenge the Employment Tribunal’s conclusion that none of the acts complained of after September 2012 were unlawful.  That is essentially a perversity challenge.  I am unable to accept that challenge.  It seems to me that the Employment Tribunal was entitled to conclude as a matter of fact that after September the matters complained of were attributable not to the protected act / relevant disclosure but to the failure to reach agreement for her return to work.  The claims after September fail on “causation”.  In these circumstances, it is immaterial whether or not the Claimant’s grievances on 3, 16 and 25 January amounted to protected disclosures (see paragraph 103).  Further, it is unnecessary to consider the detrimental treatment alleged at paragraphs 3(d), (f) and (g) said by the Claimant not to have been addressed by the Employment Tribunal.  Those claims founder on the rock of causation.

 

23.              It follows that I uphold the Respondent’s appeal and dismiss the Claimant’s cross-appeal, subject to one further issue.  Is it necessary to remit to the Employment Tribunal the question as to whether time should be extended under the reasonable practicability (whistle-blowing) or just and equitable (victimisation) provisos?

 

24.              At paragraph 99, in relation to the 17 May 2012 “threatening” phone call allegation (paragraph 3(a)), the Employment Tribunal held that there was no evidence to support the assertion that it was not reasonably practicable to bring that claim within time.  It necessarily follows that the same is true of the incidents terminating in September 2012.

 

25.              Similarly, in relation to the same victimisation allegation (paragraph 6(a)), the Employment Tribunal was not prepared to extend time given that the Claimant had, for many months, had the benefit of legal advice (paragraph 99).  I note that the Claimant appointed new solicitors on or before 24 September 2012 (paragraph 60), replacing her original solicitors from 8 June 2012 (paragraph 34).  In those circumstances, it also follows that time will not be extended under the just and equitable proviso.

 

26.              Accordingly, I do not find it necessary to determine the Respondent’s causation appeal against findings adverse to that party in relation to the period of suspension prior to the end of September 2012.

 

Disposal

27.              The cross-appeal is dismissed.  The appeal is allowed to the extent that the claims stand dismissed on limitation grounds.