|At the Tribunal|
|On 28 February 2018|
THE HONOURABLE MRS JUSTICE SIMLER DBE
BY HER LITIGATION FRIEND JANE ATKINSON
Transcript of Proceedings
Practice and Procedure
(i) whether the detriment claims are in time in circumstances where the grievance detriment claim failed; and
(ii) whether the grievance detriment claim was wrongly rejected on the basis of too narrow an approach to the list of issues agreed in the case.
THE HONOURABLE MRS JUSTICE SIMLER (PRESIDENT)
a trial period of six months.
"Ms Madden was not given any detail beyond this and did not know (and still did not know at this Tribunal) the reason for why this request was made." (paragraph 229).
On 5 August 2015 Ms Madden was told that she could continue to hear the appeal and grievance. Again no explanation was given to her as to why she had been asked to put matters on hold (paragraph 230).
"I am therefore satisfied that KJ did raise these issues with MW. I also am satisfied that MW then took action to discuss the issues with KJ and NM and SO.
Having done so KJ apologised to MW for her misunderstanding over the TMI issue. Having met with and interviewed MW I am satisfied with the explanation that he has provided to me.
I found MW to be credible and there was no suggestion to me whatsoever that what he told me was not the truth.
I am also satisfied that his explanation to me corroborated the email trails from the time which recorded how the matter had been dealt with."
At paragraph 233 the Tribunal found that the Respondent had since discontinued the use of TMIs as a product but none of the Respondent's witnesses were able to give the Tribunal any information about the rationale for that.
The relevant conclusions in the Employment Tribunal's Judgment
(i) From 13 November 2013 until he relinquished line management control of the Claimant on 20 February 2014, Mr Widmer subjected the Claimant to a series of 1-2-1 meetings which were detriments (see paragraphs 299 to 304). The reason for those detriments was the protected disclosure made in emails dated 8 and 12 November 2013 (see paragraphs 305 to 307): detriment 2(e) and 4(e).
(ii) On 5 February 2014 Mr Widmer imposed performance plan objectives on the Claimant that ran for a six-week period until 21 March 2014 (though in fact the Claimant was absent from work from 12 March). There was also a requirement imposed on the Claimant that she pass on all key contacts from her previous employment in the travel sector. This was detrimental treatment done on the ground of the same protected disclosures as above (see paragraphs 309 to 311): detriment 2(f) and 4(f).
(iii) On 7 March 2014 (but wrongly recorded as 28 February 2014) Ms Rock invited the Claimant to accept three months' pay to end her employment. The Tribunal found that by this time knowledge of potential abuse of TMIs at the Respondent was widespread amongst management and this was the reason for this detrimental act (see paragraphs 330 to 332): detriment 5(g).
(iv) On an unspecified date but no later than 30 March 2014, Ms Rock offered the Claimant one year's salary to end her employment. This was done for the same reason and with the same knowledge as the earlier offer of three months' pay (see paragraph 335): detriment 5(i).
(v) The Tribunal rejected the allegation that the failure to investigate and provide a grievance outcome was a detriment on the basis of the way the issue was set out. However at paragraph 340 the Tribunal held:
"Had the issue before us been that there was a failure to investigate adequately or provide an outcome in a timely manner, that treatment would have been made out. We have already found that, in relation to the investigation, there were several important witnesses whom Ms Madden failed to interview and whom she admitted in cross-examination she should have interviewed. Furthermore the length of time between the grievance being lodged in October 2014 and the outcome in August 2015 was extremely lengthy and not timely. The main reason for the excessive delays was that the respondent ordered that the investigation be put on hold for reasons, connected to TMIs which were never explained to us."
"347. The claim was presented on 18 March 2015. ACAS early conciliation commenced on 19 January 2015 and concluded on 19 February 2015. Therefore, the earliest date on which an alleged event could take place such as to be in time in relation to this claim was 20 October 2014.
348. As a result, and as agreed, the last of the detriment complaints, relating to the grievance, was brought in time. However, all of the other detriment complaints are prima facie out of time.
349. However, the complaints made by the claimant which were not resolved all the way through to the grievance/appeal against dismissal and indeed beyond, all related to the same chain of events which started with the protected disclosures which she made in November 2013. There was an ongoing course of conduct, primarily meted out by Mr Widmer, as a result of her making these protected disclosures and, when she complained about it, those complaints about the same issues and the same individuals were not resolved, into her grievance and beyond. Therefore, we have no hesitation in concluding that the detriment complaints made by the claimant amounted to a series of similar acts or failures for the purposes of section 48(3) Employment Rights Act 1996 such as to be in time. The fact that the claimant ceased to be managed by Mr Widmer on 25 February 2014, went on sickness absence on 12 March 2014, and stated to Ms Vickers on 11 July 2014 that she was intending to pursue her claims through the courts and referred to legal guidance and instructing her solicitors do not have any impact on that, contrary to Mr Peacock's submission. The claimant's interactions with other individuals along this journey, such as Ms Rock, Ms Vickers and Ms Madden, are all incidental to the fact that the issues of her treatment as a refult of making protected disclosures in November 2013 form a continuum. The tribunal therefore does have jurisdiction to hear all of the claimant's complaints."
The relevant legal principles
"(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."
"(1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B."
"(3) An [employment tribunal] shall not consider a complaint under this section unless it is presented –
(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."
"(1) Where an [employment tribunal] finds a complaint [under section 48(1), (1ZA), (1A) or (1B)] well-founded, the tribunal –
(a) shall make a declaration to that effect, and
(b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates."
"3. As to those words: first, cause and effect must carefully be distinguished. The act, or the deliberate failure to act, must be a cause of the detriment. The act, or the failure to act, has to be done on the ground specified by the employer. The detriment, however, is coincidental, or consequent upon, the act, or deliberate failure to act. The distinction between cause and effect is essential to bear in mind because of the terms of section 48 of the ERA 1996."
"4. Again, some observations: the detriment may last into the period of three months at the end of which Employment Tribunal proceedings are begun. It may even continue until, or indeed after, Employment Tribunal proceedings have been heard, but that has no effect one way or the other upon the time limits. The time limits relate not to when the detriment was suffered but when the act, or deliberate failure to act, which gave rise to the detriment occurred.
5. Accordingly, in any case that considers a question or whether a complaint is out of time, it is incumbent upon an Employment Tribunal to identify carefully the act, or the deliberate failure to act, that the Claimant identifies as causing him a detriment. The date of that act, or the date of that failure to act, must then be established. If at the latest the act, or the deliberate failure to act, is prior to the issue of Employment Tribunal proceedings by more than three months, it is only where the Claimant can show that it was not reasonably practicable for him to present a complaint before the end of that period of there months that he will be permitted to continue. A Tribunal otherwise must not (that is the meaning of the words "shall not") consider his complaint. The Tribunal has no discretion in the matter, having found the facts, except that which is inherent in the judgment as to reasonable practicability which is called for by section 48(3)(b). Such a judgment must be based upon some evidential material. If a Tribunal has no submissions made to it nor evidence that may persuade it that it was not reasonably practicable to make a complaint earlier than was done, then it cannot exercise its power to prescribe a further period under section 48(3)(b), because it has no basis for doing so. It is for the person seeking to avoid the harsh impact of time limits to put that material before the Tribunal."
"29. Parliament considered it necessary to make exceptions to the general rule where an act (or failure) in the short three-month period is not an isolated incident or a discrete act. Unlike a dismissal, which occurs at a specific moment of time, discrimination or other forms of detrimental treatment can spread over a period, sometimes a long period. A vulnerable employee may, for understandable reasons, put up with less favourable treatment or detriment for a long time before making a complaint to a tribunal. It is not always reasonable to expect an employee to take his employer to a tribunal at the first opportunity. So an act extending over a period may be treated as a single continuing act and the particular act occurring in the three-month period may be treated as the last day on which the continuing act occurred. There are instances in the authorities on discrimination law of a continuing act in the form of the application over a period of a discriminatory rule, practice scheme or policy. Behind the appearance of isolated, discrete acts the reality may be a common or connecting factor, the continuing application of which to the employee subjects him to ongoing or repeated acts of discrimination or detriment. If, for example an employer victimised an employee for making a protected disclosure by directing the pay office to deduct £10 from his weekly pay from then on the employee's right to complain to the tribunal would not be limited to the deductions made from his pay in the three months preceding the presentation of his application. The instruction to deduct would extend over the period during which it was in force and the last deduction in the three months would be treated as the date of the act complaint of.
30. The provision in section 48(3) regarding complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure. The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.
31. The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within section 48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them. Section 48(3) is designed to cover such a case. There must be some relevant connection between the acts in the three-month period and those outside it. The necessary connections were correctly identified by Judge Reid QC as (a) being part of a "series" and (b) being acts which are "similar" to one another.
35. In order to determine whether the acts are part of a series some evidence is needed to determine what link, if any, there is between the acts in the 3 month period and the acts outside the 3 month period. We know that they are alleged to have been committed against Mr Arthur. That by itself would hardly make them part of a series or similar. It is necessary to look at all the circumstances surrounding the acts. Were they all committed by fellow employees? If not, what connection, if any, was there between the alleged perpetrators? Were their actions organised or concerted in some way? It would also be relevant to inquire why they did what is alleged. I do not find 'motive' a helpful departure from the legislative language according to which the determining factor is whether the act was done 'on the ground' that the employee had made a protected disclosure. Depending on the facts I would not rule out the possibility of a series of apparently disparate acts being shown to be part of a series or to be similar to one another in a relevant way by reason of them all being on the ground of a protected disclosure."
In other words, a series of disparate acts that are apparently unconnected may be treated as similar and as forming part of a series where the evidence establishes a connection between them. Whether or not there is a relevant connection is a question of fact. All the circumstances surrounding the acts will have to be considered. As Mummery LJ observed (and Sedley LJ agreed at paragraph 41), depending on the facts, that connection may be no more than that they were all done on the ground of a protected disclosure.
"act or failure to act to which the complaint relates or, where the act or failure is part of a series of similar acts or failures, the last of them…"
and argues that there is nothing in that provision which requires that an act or a series of acts must be individually actionable. It would have been easy for the legislation to have used the words "which are found to be proven" after the words "to which the complaint relates" in the subsection. Mr Jackson contrasts s. 48(3) with s.49 which refers to a complaint that is 'well-founded' and submits that those words or words to similar effect could have been used, but were not. Similarly, he points to Mummery LJ's exposition in Arthur (set out above) and the absence of any express statement that acts must be proven to count.
"A series does not cease to be a series because on analysis and on judgment it is concluded that some part of it is not unlawful. This was asserted to be a continuing act, and, in my judgment, it was a continuing act. The fact that the claimant cannot succeed on some part of it does not mean that the case was time-barred." 
The caveat we add is that there must be at least one in-time proven act that infringes the relevant provision.
"24. On 13 October 2014, the Claimant sent a 14 page grievance letter in which she repeated the disclosures set out above and challenged her treatment (including dismissal) by the Respondent as a result of being a whistleblower. The content of the grievance is relied on in full as a qualifying disclosure under ss.43B(1)(a),(b) ERA 1996. Without prejudice to that fact, the Claimant gave the following new information:
"I came across this situation again in January 2014, where I was accidentally sent an email by Sarah Oakes meant for Nicola Mann on 10 January 2014 (pages 1-2 of the Email bundle), where the two were conspiring to do the very same thing with another client, The National Trust. Sarah Oakes made it clear in the email that they were going to create a TMI for the clients already scheduled campaign in the July Mailings of 2014. It was clear that they would be manipulating this so that they could claim the revenue from this posting towards their targets. As highlighted, this was against RMG policies of use for TMIs and Ofcom's policies as a violation of competition rules"
25. The Respondent has not revised its decision and as part of its investigation, it failed/made no attempt to carry out interviews with a number of key individuals, including but not limited to: (i) Mike Widmer; (ii) Nicola Mann; (iii) Sarah Oakes; (iv) Leger Holidays; and (v) Rita Rock. Furthermore, to date the Claimant has still not received a grievance outcome."
The ET3 accepted that the Claimant had raised a grievance but said it was being considered as part of her appeal (see paragraph 52). In other words, there was no outcome.
"Failing to investigate and provide an outcome to her grievance".
It is clear from the Judgment that at the outset of the full merits hearing, a small amendment was made to the List of Issues but there was no amendment to issue 7a. That is notwithstanding the fact that in the fortnight before the substantive hearing started, the Respondent produced a grievance outcome report.
"Failing to investigate and provide an outcome to her grievance
339. On the issue as set out, the treatment alleged did not occur. There was no failure to investigate the claimant's grievance. Ms Madden did carry out an investigation into that grievance. Furthermore, there was no failure to provide an outcome to her grievance. She did provide an outcome on 28 August 2015. Therefore, this complaint fails.
340. Had the issue before us been that there was a failure to investigate adequately or to provide an outcome in a timely manner, that treatment would have been made out. We have already found that, in relation to the investigation, there were several important witnesses whom Ms Madden failed to interview and whom she admitted in cross-examination she should have interviewed. Furthermore, the length of time between the grievance being lodged in October 2014 and the outcome in August 2015 was extremely lengthy and not timely. The main reason for the excessive delay was that the respondent ordered that the investigation be put on hold for reasons, connected to TMIs, which were never explained to us.
341. This complaint therefore fails."
(i) whether the detrimental acts relating to the grievance found at paragraph 340, were done on the ground of the protected disclosure (or disclosures) made by the Claimant;
(ii) If so, whether there was a series of similar acts for the purposes of s.48(3)(a) ERA so that time is extended, and all detrimental acts found proved are to be treated as in time.
(iii) If not, whether time should be extended under s. 48(3)(b) ERA because it was not reasonably practicable for the Claimant to have made her claim within three months of the period ending 30 March 2014.