United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TRISTAN JONES (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

1. This is a hearing under Rule 3(10). I shall refer to the parties as they were below. The Claimant Appellant appears by Mr Jones of counsel, who did not appear below, but who has provided considerable assistance and focused argument. The appeal is from a Reserved Judgment of Employment Judge Warren with Reasons promulgated on 10 August 2015.
2. The background facts can be summarised shortly as follows. The Claimant was employed by the Respondent from August 2006, at first in the Bulgarian office, and later in London. His employment came to an end on 30 September 2013 when, on the Respondent's case, he accepted voluntary redundancy and agreed to leave pursuant to a settlement agreement stated to be in full and final settlement of all claims he had against the Respondent. The settlement agreement was a detailed one, and clauses 14, 15 and 16, which deal with the claims said to have been settled pursuant to it, are set out in detail in the Judgment. The Claimant presented a claim to the Employment Tribunal on 29 January 2015 making a series of claims including claims of breach of contract, unfair dismissal, a Wages Act claim and various allegations of unlawful race discrimination and personal injury.
3. So far as race discrimination is concerned, he complained of a series of matters occurring prior to termination, alleging that there was, in effect, a campaign against him by two alleged discriminators in particular, Catherine Pierre, his manager during the period, and Mathieu Gelis. That campaign, he asserted in his ET1, was for two reasons. The main reason, in his opinion, as he set it out at page 17 of his ET1, was their genuine desire to sideline and inhibit him as a potential competitor for limited promotional roles, they being extremely ambitious, ready to do anything to achieve their goals and therefore behaving aggressively with others towards him. He describes at page 18 a second, more subtle reason for their actions against him, and that he described as being because of his Bulgarian origin. He said:

"… They could easily convince the new-joiners of the team that 'the Bulgarian' is getting ahead of himself (as Mathieu told me directly). The hostile political rhetoric in the media and by nationalist politicians against Bulgarian immigrants both in France and the UK helped them, given that the mainstream media is one-sided and often times outright racist and discriminatory against Bulgarians."

4. He continued that there was genuine irritation from them that someone coming from Bulgaria with experience in what allegedly was described as the kind of credits to grocery stores that are approved in Eastern Europe could maintain his performance and standards despite the subversive and concerted attack that the Claimant said they had organised against him.
5. The claims made in the ET1 were resisted both by reference to the settlement agreement that was entered into following voluntary redundancy, on the Respondent's case, and by reference to time limitation periods having expired.
6. The claims were considered at two Preliminary Hearings, the first on 27 April and the second on 6 July 2015. So far as the latter is concerned, Employment Judge Warren concluded that the settlement agreement was valid and therefore excluded the majority of the Claimant's claims. Secondly, he concluded that the settlement agreement did not exclude the Claimant's unlawful discrimination claims. However, so far as those were concerned, he reached the conclusion that claims made up to and including termination of his employment were out of time; there was no continuing act; and that it was not just and equitable to extend time in that regard. So far as the post-employment discrimination and victimisation claims were concerned, he concluded that these were in time but had no reasonable prospects of success, and they were struck out.
7. By a Notice of Appeal received on 7 September 2015 prepared by the Claimant in person, six grounds of appeal were advanced against Employment Judge Warren's Decision. These are helpfully summarised by the Claimant at paragraph 8 of his skeleton argument as follows:

"8.1. It was an error of law to strike out my 'post-employment' claims in the absence of a full employment tribunal given the extent of the factual disputes that were too complex to be resolved in a preliminary hearing. …

8.2. The 1-day preliminary hearing was an unfair impromptu mini trial that could not have legitimately resolved any factual dispute and therefore determining any factual dispute on this basis is an error of law. …

8.3. The interpretation of the undisputed facts of the case and the subsequent decision to strike out all claims by taking them at their highest is legally perverse. …

8.4. The decision that my 'post-employment' claims are not arising out of and closely connected to my employment with the Respondent as defined by section 108 of the Equality Act is an error of law because it was made in the absence of a full employment tribunal. …

8.5. Judge Warren reached this decision on my Breach of Contract claims and as a consequence on the validity of the Settlement Agreement with no evidence. …

8.6. It is an error of law to strike out my 2010-2013 claims in the absence of a legitimate conclusion on my 'post-employment' claims, including a determination if they fall within the 'continuing act' definition under section 123(3) of the Equality Act. …"

8. Mr Jones, whilst not abandoning any of the points raised by the Claimant in his grounds of appeal and skeleton argument, made it clear that his principal argument is targeted at the post-employment claims and the decision that they have no reasonable prospects of success.
9. I turn to address the grounds of appeal, grouping them together to the extent possible. So far as the validity of the settlement agreement is concerned and the grounds relating to that, the Claimant asserts that there was no evidence heard as part of this decision and therefore the Employment Judge was not entitled to reach his conclusion that the settlement agreement was valid. I disagree. The Employment Judge heard evidence both from the Claimant and from the two individuals said to have threatened him and to have caused the duress on which he relied as a basis for contending that the settlement agreement was not valid and effective to exclude his claims. The Employment Judge, having heard the evidence, was entitled to make findings of fact based on that evidence. There is no criticism or challenge to the self-direction in law given by the Judge in respect of the duress argument. In my judgment, the conclusion reached by the Judge was one that he was amply entitled to reach and no arguable error of law is disclosed.
10. So far as the in-employment grounds of appeal are concerned, Mr Jones made clear that there is no challenge to the conclusion reached by the Judge that it would not be just and equitable to extend time. The challenge is to the Judge's conclusion at paragraph 28 of the Reasons that there was no continuing act in this case. The Judge said:

"28. On the Claimant's own case, there is a whole year between the last alleged act of discrimination in his employment, being the termination of his employment on 30 September 2013 and his first allegation of post dismissal discrimination, which begins with his complaint about the delay in Ms Pierre meeting him during October 2014. In that very significant gap between the allegations, it is clear that there is not a continuing discriminatory state of affairs. I find that [the Claimant] was not under threat of keeping silent or of having to wait and prove his trustworthiness."

11. Mr Jones says that the Judge was wrong to say that a whole year elapsed between the last alleged act of discrimination and the first allegation of post-dismissal discrimination. He points in particular to the fact that there was on the Claimant's case a promise by Ms Pierre to help him find employment or to help him more generally and a failure to help that was an ongoing failure by her lasting until at least August 2014 (and beyond) when the Claimant had an angry discussion with her in which she told him he must keep things confidential. In the course of hearing evidence about the duress allegation the Judge inevitably heard evidence about the discussions in which alleged threats were made and formed a firm view that the allegations made by the Claimant lacked credibility. He found that the Claimant had contacted Ms Pierre both in April 2013, suggesting that she had been supportive towards him, and again in July 2014 after what he found to have been a break in contact of nine months, in terms that did not disclose any fear or anxiety on his behalf.
12. Having heard evidence about the course of conduct and contact between the Claimant and Ms Pierre (albeit in context of the duress argument) about which complaint is made so far as continuing acts of discrimination are concerned, the Employment Judge reached conclusions on those questions and was entitled to have regard to the fact that he had found that there was no threat, no requirement to stay silent and no requirement to wait and prove his trustworthiness. In those circumstances, the Judge was entitled to conclude, in light of the pleading and the evidence that he heard in relation to the duress point, that there was no continuing act and there being no continuing act his exercise of discretion in relation to whether it would be just and equitable to extend time is not under challenge. In my judgment, no arguable point of law arises in respect of those conclusions.
13. I reach a different conclusion so far as the post-employment complaints are concerned. Here, having concluded that the settlement agreement did not exclude those complaints, the question for the Judge was whether these complaints had no reasonable prospect of success such as to justify a strike out. The Judge directed himself appropriately on the law at paragraphs 34 to 36 by reference to well established principle and guideline authority in Anyanwu v South Bank Students Union [2001] ICR 391 and Ezsias v North Glamorgan NHS Trust UKEAT/0400/09, [2011] UKEAT 0399_09_1803. He said expressly that where facts are disputed a Tribunal dealing with such an application should take the Claimant's case at its highest. Nevertheless, when the Judge came to deal with those post-termination discrimination complaints, Mr Jones points in particular to paragraphs 42 and 43, where he contends that it is clear that the Judge did not take the Claimant's case at its highest but in effect accepted conflicting evidence that he had heard in a different context and for a different purpose and without therefore taking the Claimant's case at its highest. The position is made worse, Mr Jones argues, because the Claimant had sought witness orders in respect of individuals who he said could assist in relation to his allegations and had sought disclosure. Having refused those applications and said he would take the Claimant's case at its highest, the Employment Judge was not entitled to make findings of fact on a partially evidenced basis and erred in law in the respects identified by the Claimant in his Notice of Appeal.
14. Those arguments advanced by Mr Jones do raise an arguable point of law. They are not answered by the alternative way in which the Judge dealt with this aspect of the case at paragraph 45, where he said that the Claimant had identified no facts from which a conclusion could be inferred that the matters complained about were because of his Bulgarian nationality. So far as that is concerned, as I indicated at the outset, the Claimant did identify a basis on which his Bulgarian nationality was relevant to the reasons for the treatment he was complaining about, and, in those circumstances, the Judge's conclusions are at least open to challenge on the basis asserted. The same is true of the victimisation claim, where at paragraph 47, again, the Judge made findings that were based on what is described as a partially evidenced basis and are therefore open to challenge as findings that he was not entitled to make. I should have made clear that in reaching his conclusions at paragraphs 42 and 43 in relation to post-employment, the Judge was looking at the question of whether the facts asserted had a sufficiently close connection with the Claimant's employment. That is a fact-sensitive question. In circumstances where that exercise should have been conducted by taking the Claimant's case at its highest but was not, it seems to me that there is an arguable point of law that should go forward to a Full Hearing.