MR T GAYLE v POST OFFICE & OTHERS [2000] UKEAT 786_00_1812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 786_00_1812Case No Appeal No. EAT/786/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T GAYLEAPPELLANTPOST OFFICE & OTHERSRESPONDENT
Before
His Honour Judge J Altman Mr P DawsonDate 18 December 2000
[1]APPEARANCES For the Appellant MR A R LEE (Advisor) Instructed by Worcestershire Council Queen Elizabeth House The Trinity Worcester WR1 2PW JUDGE ALTMAN This is an appeal from the decision of the Employment Tribunal sitting at Birmingham over 2 days on the 16 and 20 March 2000, when in what was effectively a preliminary hearing, the application of the Appellant that he was discriminated against unlawfully on the grounds of race was dismissed for being out of time.[2]The appeal comes before us by way of preliminary hearing to determine if there is a point of law capable of being argued in full before the Employment Appeal Tribunal. The essential issue which Mr Lee takes on behalf of the Appellant is that the Employment Tribunal erred in failing to identify a continuous course of conduct so as to bring within time complaints which when viewed individually would otherwise be out of time.[3]In the originating application the Appellant set out his claim in which he appeared clearly to be describing a history of discrimination, victimisation and harassment since 1997 despite his attempts to resolve the matter, referring to meetings and letters and involvement of his Union.[4]In addition to the history of matters there was a final incident in which the Appellant said that, having previously arranged with management to leave early in time for him to help his girlfriend with her doctor's appointment, the management then reneged on that arrangement at the last minute and made him choose to take leave with no pay for the purpose of that shift or to stay at work; and that he did the latter with the result that his girlfriend had to cancel her appointment. In the detailed notes that were provided for the purpose of the proceedings before the Employment Tribunal, at page 110 the Appellant wrote:
"Although the last incident on March 3 rd 1999, was indeed not directly racist, the managers involved, have previously discriminated against me or victimised me on racial grounds."
This was a case of alleged direct discrimination in respect of all allegations.[5]The Employment Tribunal in their decision pointed out that the incidents complained of began in August and September 1997, covered incidents in 1998 and the originating application was received at the office of Employment Tribunals on 1 June 1999.[6]The background to these incidents is that the Appellant began casual work with the Respondents in February 1997. By October that year his employment had been made permanent and the Employment Tribunal then, in their reasons, set out a historical sequence of incidents. In January 1998 the Appellant was admonished for not listening at a team briefing. In respect of that the Employment Tribunal rejected the allegation that the Appellant had made a complaint of racial discrimination as a result of what occurred. In March 1998 the Appellant was given a Stage 1 attendance warning for poor attendance and no allegation arose from that in relation to race discrimination. In the same month the Appellant was refused pay during the leave which he asked for in order to visit his father who had suffered a heart attack and the Tribunal recorded no contemporaneous complaint of race discrimination.[7]In April 1998 there then arose one of the main complaints of the Appellant, namely that he was allocated Number 11 Walk, an unpopular walk which his seniority should have avoided his having to do. In July 1998, after sick leave and annual leave he was put again on the Number 11 Walk and after more annual leave he was put back on it yet again. At the same time the Employment Tribunal recorded the Respondents' dissatisfaction with the Appellant's work. After an informal grievance about being kept on the Number 11 Walk which did not satisfy the Appellant he decided to issue a formal grievance which was lodged on 8 August.[8]Meanwhile, on 5 August he had to attend a Stage 2 attendance disciplinary hearing but no decision was made by the Respondents and in the same month he was subjected to what is called a bag search, presumably to check the reliability of his deliveries as a postman. This was on 7 August and it was the day after that, on 8 August, that the grievance was lodged.[9]On 24 August there was a grievance meeting. It was the first stage in the grievance, which was taken out by the Appellant. Mr Hill had understood that in fact it was the second stage but on a careful examination of the way in which the Appellant put his case in writing, it was generally agreed that this was the first stage. It was the Appellant's case that that meeting was adjourned with the issues unresolved.[10]It was the Respondents' case that all matters were concluded, though they took no notes, a matter for which they were criticised by the Employment Tribunal. And the conclusion that the Respondents contended for was that it resulted in the Appellant being taken off the Number 11 Walk, the Stage 2 warning being rescinded, the arrangement for a different line manager to manage the Appellant and in their view that the Appellant himself was happy with the result of his grievance. There was the essential conflict of fact for the Employment Tribunal to resolve, for if they had accepted the Appellant's case that matters were not resolved and remained on-going they may then have been in a position to have the factual basis upon which to conclude that there was arguably a continuing act. If on the other hand they found in favour of the Respondents they would have the factual basis upon which they could come to the contrary conclusion.[11]To complete the history of relevant matters, on 30 December 1998 the Appellant was counselled in relation to a failure to deliver 2 specific letters and then in early March 1999 there was the incident about leave which the Appellant took to attend his father and to which I referred at the outset of this judgment. This was followed by the originating application on 1 June.[12]In assessing the facts of this case the Employment Tribunal pointed to certain features in order to determine the conflict which confronted them. First, they observed that whilst the Appellant had said he had recorded all the meetings he had with management secretly, he said that he did not do that in relation to the meeting of 24 August and he gave as the reason that the meeting was going to go on for too long and the tape would stop half way.[13]The Employment Tribunal placed some emphasis upon that. It appears in relation to their assessment of the credibility of the Appellant. Mr Hill suggests that it is odd that the Employment Tribunal should as it were forgive the Respondents for not taking notes but criticise the Appellant for failing to make a recording. That clearly it seems to us overlooks the purpose, or the consequence, of the conclusion that the Employment Tribunal reached. They were clearly sceptical of the accuracy of the Appellant in saying he made no recording because they found it strange that he would not do so having made recordings of earlier meetings and the only inference from that of course can be that they considered that that was an indicator that such recording as he made did not produce the record for which he was contending in evidence.[14]The second matter to which the Employment Tribunal referred is that it was the Appellant's case that he had, after the grievance, repeatedly pressed his Union to pursue matters that remained outstanding but that he received no feedback and was told by his Union Representative that his earlier letter had not been received by them. There appears therefore to have been an inconsistency between the Appellant's case that the Union were notified and were doing nothing on the one hand and the Union's case that they were not being requested to do so or indeed in receipt of an earlier letter on the other.[15]The third matter is the Appellant's case that he was continuing to press the Union and they advised him that because of the time scale he should consult a solicitor.[16]The Employment Tribunal then directed themselves to the applicable law and in paragraph 29 pointed to the essential issue and said:
"Under Section 68(7) of the 1976 Act, for the purposes of that Section, any act extending over a period should be treated as done at the end of that period and a deliberate omission should be treated as done when the person in question decided upon it."
[17]The Employment Tribunal then identified a number of cases that had been referred to which they took into consideration and went on to express their conclusions. In paragraph 32 they said that:
"There are only three potential "acts" … which could potentially be in time - his grievance … in early August … the meeting … on 30 December 1998 … and anything which occurred on 3 March 1999 when the (Appellant) went off on sick leave."
[18]They then identified the Appellant's case in the following terms:
"The Appellant argues that his outstanding grievance, which he says remained unresolved after the meeting on 24 August 1998, was a continuing act and remains outstanding as no final date has yet been fixed."
[19]They then considered the March incident and they make a finding in terms:
"There was no act of discrimination which occurred on 3 March 1999."
They point out that the Appellant was upset by what happened but point out that it was not alleged in the originating application that this constituted an act of unlawful racial discrimination although they recognised that the Appellant expressed himself as disappointed by what happened. They also refer to the passage in which in his particulars he set out his case. They conclude:
"We therefore find that there was no act of discrimination which occurred on 3 March 1999. There are no other allegations immediately preceding three months from the date of the Originating Application, all other complaints must necessarily be out of time."
[20]The Employment Tribunal then went on to purport to deal with the question as to whether it was just and equitable to allow the other complaints out of time. The Employment Tribunal deal then with the question of a continuing complaint.[21]On the face of it of course that is an error, because the question of whether there was a continuing complaint goes to the question as to whether the complaint was in time not whether it is just and equitable to extend time. But from the way in which the issue was analysed by the Tribunal it is to be seen that they clearly directed their considerations to the question of whether or not there was a continuing act and that is clearly relevant and was so in the Tribunal's mind, whatever the formal structure of their decision, to the issue of whether the complaint was in time. And the Employment Tribunal considered the incidents in August 1998 and December 1998. As to the December 1998 incident they refer to the facts, the Appellant's complaint of not having received a copy of the procedure, the fact that the managers manner was intimidatory as alleged and they also refer to the absence of any specific allegation of race discrimination and conclude:
"There is no reference in that statement nor can we find any allegation of race discrimination. We do not consider that this incident amounted to an act which can be the subject of a complaint."
It seems to us that that was a finding of fact, which the Employment Tribunal were entitled on the evidence before them to reach in the exercise of their judgment.[22]As to the 24 August grievance, the Employment Tribunal resolve the conflict of evidence in the Respondents' favour and they gave their reasons for that; first the absence of any evidence to support the Appellant's case that he was pressing for the grievance to be resumed, and therefore the strange feature, if the Appellant's case were correct, that the grievance was unresolved; secondly, the evidence of the Appellant's Union Representative which supported that of the Respondents; thirdly, the rejection of the Appellant's evidence as to why he did not record the meeting to which I have already referred.[23]The Employment Tribunal then came to their essential finding on the matter in the following terms:
"The real reason it seems to us why the (Appellant) did not chase the matter further afterwards was because it had been resolved to his satisfaction. We do not therefore consider that there was any continuing act of discrimination in relation to the Appellant's grievance from 24 August 1998 onwards."
[24]We have been referred to a number of authorities in support of this preliminary hearing. The first one is the case of Littlewoods Organisation v Traynor [1993] IRLR 154 which held in effect that an Employment Tribunal was entitled to find a continuing act where, following a grievance procedure where remedial measures were agreed, they were not in fact implemented.[25]However, it seems to us that all that that decision determined in the context to this appeal was that where a grievance procedure has failed to break the continuing effect of matters being complained about, as a matter of fact an Employment Tribunal is entitled to find that there is a continuing act. In so far as the inevitable inference from that decision is that the assessment of the evidence in relation to whether or not there is a continuing act is one for the Tribunal to be capable of resolving. It seems to us that it becomes an argument against the Appellant because whilst it refers to the inferences that may be drawn, this is not an issue of law.[26]We referred to the case of the Ford Motor Company v Shah & Others EAT 530/95 and in that case there was reference back to the Littlewoods case to which I have just referred, and we remind ourselves that reference is made to the following passage in the Littlewoods case:
"The decision whether there is a single act having continuing consequences or a continuing act is one which must involve consideration of the particular circumstances."
Consideration of particular circumstances, it seems to us, is the province of the Employment Tribunal. It seems to us that on the evidence as presented the Tribunal were entitled to accept the evidence of the Respondents that the grievance was concluded and that there can be no error of law consequent thereupon.[27]In his submissions to us Mr Lee has sought to suggest that in fact the Employment Tribunal made an error on the evidence because certain matters were unresolved; for instance, he says, the question as to whether or not the Stage 2 attendance warning was to be downgraded. All that was said, Mr Lee has told us, is that management at the grievance meeting agreed to review the matter and it was only later that something was done about it. It seems to us that the Employment Tribunal were entitled to conclude that an agreement to review a matter is capable of being the resolution of it.[28]In certain circumstances, subsequent events such as the Littlewoods case may show as a matter of fact that it did not conclude matters. But that does not seem to us to affect the legal propositions involved. Furthermore, the Employment Tribunal, in spite of their finding that on the facts there was no continuing act of discrimination, then went on to consider whether "This particular grievance could amount to a continuing act". They point out that the Appellant could have taken his grievance to the next stage, could have issued proceedings in the Tribunal, but nothing, in their judgment happened, so that they concluded that that showed that the delay in itself indicated a resolution of the grievance which underlines it seems us, their earlier finding.[29]The Employment Tribunal then set out further factual matters, which led to their conclusion. They find first that the documentation did not refer to the grievance in terms and secondly they observe that though the Appellant had Trade Union Representatives and knew, as they found, of the time limit, that the Appellant himself did not commence proceedings earlier, complaining of such a continuing act.[30]Reference was made to the case of Aniagwu v London Borough of Hackney 1999 IRLR at page 303 and we are asked to consider the headnote:
"An Applicant must be able to identify the detriment to which he has been subjected before he can present a complaint. Where the act consists of a refusal to accept a grievance, the Applicant is only subjected to a detriment when he is notified that his grievance was rejected."
[31]But in that case was that issue is simply going to when the actual document landed through the letterbox as being the date of notification. It does not seem to us to provide authority for the proposition that where someone is uncertain of the result, there is a continuing act. The finding of the Tribunal here was that the Appellant was certain of the result.[32]The Employment Tribunal then went on to consider the other allegations, the earlier ones and they concluded that they were even more out of time and had very little to do, even on the face of it, with less favourable treatment on racial grounds. They say that "Apart from the (Appellant's) own subjective analysis that white employees would have been treated better (they) have little else to support them" and the Employment Tribunal finally conclude that it would not be just and equitable to allow the complaints to be heard out of time.[33]We reiterate that it may be that the form of the decision is in error in appearing to relate these matters to the question of the just and equitable test. The clear finding of the Tribunal, on the evidence before them, was that any act complained of was not part of a continuing act and not capable, on the facts before them, to have amounted to such, because they rejected the Appellant's evidence and indeed made clear the sort of impression that he created as a witness before them.[34]In those circumstances it seems to us that unless there is evidence that the Employment Tribunal were perverse and made a wrong finding on the evidence the appeal has no point of law in it. Mr Lee has sought to assert that they made some errors as to whether several things were resolved or left over, but reading the decision and having seen some of the material, we find that the Employment Tribunal's decision was wholly consistent with one view of the evidence before them and we find there is no arguable points of law. Accordingly this appeal must be dismissed at this stage.