“(1) An employment tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of (a) the period of three months beginning when the act complained of was done; ... (6) A court or tribunal may nevertheless consider any such complaint ... which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. (7) For the purposes of this section ... (b) any act extending over a period shall be treated as done at the end of that period; ...”
“The failure by the Respondent to deal with the Claimant’s grievance in good time or at all.”
“My claim of discrimination relates to the way in which BSUH Trust conducted an investigation into the alleged allegations of bullying and harassment of ... AR against me as the supervisor of her BSc project”.”
“The facts can only be tentatively stated because there has, of course, been no trial. The Respondent is an NHS Trust on the south coast of England. The Claimant has (since 1985) been, and still is, employed as a Principal Clinical Bio-Chemist at a salary of over£41,000 a year. She is black Afro-Caribbean. The Tribunal found as follows: ‘2. An internal complaint was raised against the Claimant by another member of staff (AR). The complaint was that the Claimant had bullied and harassed her. 3. That complaint was the subject of an internal investigation, which came to the view that there was sufficient to warrant disciplinary action against the Claimant. 4. As a consequence, the Claimant attended a disciplinary hearing on11 October 2004 . The outcome of that hearing was that the disciplinary charges against the Claimant were dismissed. 5. Following that, the Respondent's General Manager, Judy Piper, endeavoured to arrange a meeting with the Claimant to discuss issues arising as a consequence of the disciplinary action. No such meeting took place. 6. On9 November 2004 , the Claimant wrote to the Respondent's Director of Personnel registering a grievance as to the conduct of the disciplinary process. 7. The Claimant was informed of the outcome of that grievance on20 January 2005 . 8. On24 February 2005 , the Tribunal received, by facsimile transmission from solicitors acting on the Claimant's behalf, a Tribunal Claim Form dated27 January 2005 making a series of complaints of racial discrimination’.”
“The claims span four periods. (1) An investigation which found that there was a case for the Claimant to answer in August 2004. (2) The hearing of disciplinary charges on 11 October; they were dismissed. (3) What Judy Piper did after the disciplinary hearing. (4) The handling of the Claimant’s grievance submitted on9 November 2004 . ”
“15. The first category was of acts of less favourable treatment all relating to the actions/omissions of the investigation team. Apart from the first of those allegations, they were of matters occurring over a period ending in August 2004 whenthe investigation team produced its report. Those complaints are: First alleged act of less favourable treatment The Respondent sending the letter of17 May 2004 (inviting the Claimant to address the investigation team) to the wrong address, thereby denying the Claimant the opportunity to provide the investigation team with her version of events before it decided that she had a case to answer. Second alleged act of less favourable treatment The Respondent's failure to make any or any reasonable efforts to ensure that the Claimant had an opportunity to address the investigation team before it decided whether she had a case to answer. Third alleged act of less favourable treatment The consideration by the investigation team of the Claimant's activities with the Black and Ethnic Minority Network. Fourth alleged act of less favourable treatment The acceptance by the investigation team of the uncorroborated evidence of AR despite the absence of any or any reasonable grounds for doing so. Fifth alleged act of less favourable treatment Pursuit by the investigation team of lines of enquiry during its interviews with potential witnesses that were irrelevant to AR's complaint to the intent of unearthing matters which would support the investigation team's belief that the Claimant had a case to answer. Sixth alleged act of less favourable treatment The deliberate or negligent misinterpretationby the investigation team of evidence adduced by witnesses. Seventh alleged act of less favourable treatment Repeated unreasonable delays by the investigation team to respond to the Claimant's correspondence throughout the period of the investigation. Eighth alleged act of less favourable treatment The failure by the Respondent to pay any or any adequate attention to its own policy in respect of complaints against staff on 2 and14 July 2004 and failure to complete the investigation timely. Ninth alleged act of less favourable treatment The conduct of the investigation team's informal proceedings in a formalmanner. Tenth alleged act of less favourable treatment The production of a report by the investigation team in August 2004 thatfound that the Claimant had a case to answer. 16. The second category of acts of less favourable treatment related to the disciplinary hearing. Those alleged acts tookplace on or by11 October 2004 . Eleventh alleged act of less favourable treatment The failure by the Respondent to provide the Claimant with copies of the meeting notes collated by the investigation team causing a detriment impact on the Claimant's ability to defend herself against AR's complaints. Twelfth alleged act of less favourable treatment The failure by the Respondent to require the Claimant's deputy to attend the disciplinary hearing on11 October 2004 , despite the fact that the investigation team knew that the Claimant's deputy would provide testimony that would indicate that AR's complaints against the Claimant were unfounded. 17. The third category of acts of less favourable treatment related to the actions of Judy Piper. The Claimant asserts that such events happened on the dates in October, November and December as set out in the thirteenth alleged act of less favourable treatment, oris continuing discrimination.The Claimant put the acts of discrimination in the following terms: Thirteenth alleged act of less favourable treatment. The intimidation of the Claimant by Judy Piper after the disciplinary hearing had dismissed the charge against the Claimant in endeavouring to arrange meetings in October, November and December. Fourteenth alleged act of less favourable treatment The failure by Judy Piper to inform the Claimant's line manager or the Pathology Manager of the outcome of the disciplinary hearing. Fifteenth alleged act of less favourable treatment The failure by Judy Piper to discuss the hearing or any team building strategies with the Claimant's line manager or the Pathology Manager. 18. The final category of acts of less favourable treatment concerns the Claimant'sgrievance which she submitted by her letter of9 November 2004 : Sixteenth alleged act of less favourable treatment The failure by the Respondent to deal with the Claimant's grievance in goodtime or at all. Seventeenth alleged act of less favourable treatment The failure by the Respondent to provide any or any adequate explanation for the failings of the investigation team in finding that the Claimant had a case to answer.”
“... I have fully in mind Lord Steyn’s imprecation in Anyanwu [reported at[2001] UKHL 14 ;[2001] 2 All ER 353 ;[2001] 1 WLR 638 ]] that race discrimination claims, when properly made, should be adjudicated. But I also bear in mind the clear jurisdictional requirements of the regulations and when a point is taken properly by a respondent as to time, a Pre-Hearing Review by the Chairman alone is usually the appropriate way of dealing with it. In any event, in this case, there can be no principled objection nor an objection on grounds of law that this preliminary point was taken at the Pre-Hearing Review.”
“28. The correct legal test was applied. The Chairman cites the language of Hendricks three times. First, he cites the case itself including the passage relied on by Mr Afeeva. Secondly, in his treatment in paragraph 37 of category 2, he uses the phrase “ongoing situation.”
“The written submission made by Mr Afeeva, his Skeleton Argument and the Notice of Appeal all show that as a matter of syntax and of substance the claims are correctly divided into four logical categories based on date.”
“However, that situation ended on11 October 2004 when the disciplinary charges against the Claimant were dismissed.”
“It was open to the Tribunal to consider that one leads into another, but that was not the finding that the Tribunal made here. Such a finding is one of fact.”
“41 Turning to the question as to whether it would be just and equitable to consider those complaints: 41.1 I noted that the Claimant will be able to adduce evidence of the out of time complaints whether or not I exercise my discretion to allow those complaints to be considered. 41.2 I considered the nature of the complaints themselves. 41.3 I noted the lack of any explanation for the non-presentation within time. 41.4 I also noted that the Respondent does accept that there were some procedural shortcomings in the disciplinary process. 42. Weighing these and all the other circumstances and considering the balance of prejudice, I conclude that it would not be just and equitable for the out of time complaints to be considered. 43. Consequently, the Tribunal does not have jurisdiction to consider the first to the twelfth complaints of alleged less favourable treatment on racial grounds and those complaints are dismissed.”
“32. I then turn to the point about discretion. What is unusual about this case, in my experience, is that there has been no explanation for the failure to present the claim form within the time. All the cases with which I am familiar invoke some form of excuse, but not here; and that obviously was a matter which weighed upon the Chairman when he declined to exercise his discretion. He also noted, as is the case, that all of the 12 allegations which he ruled out are capable of emerging as evidential issues pursuant to the judgment of the EAT, Mummery J in Qureshi v Victoria University of Manchester[2001] ICR 863 , cited with approval in Anya v University of Oxford & Another[2001] IRLR 377 CA. 33. The Chairman indicated that he considered the nature of each of the complaints including the fact that the Respondent acknowledged shortcomings in its process. Shortcomings in a disciplinary process are not necessarily acts of discrimination. The Chairman considered the balance of prejudice and I accept the submission made on behalf of the Respondent, which has not been answered by Mr Afeeva, that the balance of prejudice means weighing the effect of, on the one hand, stopping the case and on the other continuing it when many of the claims are out of time. I have no difficulty in understanding what the Chairman meant when he expressed himself in that convenient shorthand. 34. He mentions all the other circumstances; but I bear in mind how high the bar is on appeal to overturn a judgment of an Employment Tribunal Chairman when asked to exercise discretion to allow a point to be taken out of time. In my judgment, the Claimant has not shown an error of law or the exercise of discretion so wrong in principle as to meet the relevant test set out in Robertson.”
“In any event, it seems to me arguable that if all the allegations are going to be examined [as the Chairman suggested] in order to understand the full story, it is arguably wrong to conclude that it is not just and equitable to consider the earlier allegations...”
Showing the 50 most senior of 341.