MR DAVID F IRANDOUST v (1) SWIIS LTD (2) THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HOUNSLOW [2002] UKEAT 1009_01_0412

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1009_01_0412Case No Appeal No. EAT/1009/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR DAVID F IRANDOUSTAPPELLANT(1) SWIIS LTD (2) THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HOUNSLOWRESPONDENT
Before
Mr Justice Wall Ms J Drake Mr A E R MannersDate 4 December 2002
[1]APPEARANCES For the Appellant MR PETER WARD (Of Counsel) Instructed by: Messrs Levenes Solicitors Bedford House 125-133 Camden High Street London NW1 7JR For the 1st Respondent For the 2nd Respondent RESP0NDENT NEITHER PRESENT NOR REPRESENTED MR CASPER GLYNN (Of Counsel) Instructed by: Borough Solicitor Office London Borough of Hounslow Civic Centre Lampton Road Hounslow TW3 4DN MR JUSTICE WALL Mr David Irandoust (the Appellant) is a residential social worker. On 13 November 1999 he entered into "Terms of Engagement of Temporary Worker" with an Employment Agency known as SWIIS Limited (SWIIS). The agreement between the Appellant and SWIIS was that SWIIS would endeavour to obtain suitable assignments for the Appellant as a residential social worker. The Appellant was paid by SWIIS, but by paragraph 2.2 of the contract between them:
"For the avoidance of doubt, these Terms shall not give rise to a contract of employment between (SWIIS) and the (the Appellant). The (Appellant) is engaged as a self-employed worker, although (Swiss) is required to make statutory deductions from his remuneration ....."
[2]In January 2000 the Appellant was placed by Swiss with an Adolescent and Resource Centre for Young People known as RC1 and operated by the second Respondent, the London Borough of Hounslow (Hounslow). Whilst employing a large number of social workers, Hounslow had from time to time to rely on the provision of agency workers, and operated a list of approved agencies for the supply of staff on an "as and when" basis. SWIIS was one such approved agency. Hounslow's case was that it relied on the agency to provide suitable residential social workers. It did not conduct interviews, nor were references taken up. Those roles were undertaken by the agency.[3]The Appellant worked at RC1 from 3 February 2000 until his placement was ended on 7 April 2000. It was asserted by Hounslow, and conceded by the Appellant before the Tribunal, that the Appellant was not at any point employed by Hounslow.[4]Hounslow's case was that during March 2000, concerns about the Appellant's work began to surface. It appeared that he was not following management instructions, and on one occasion had put himself in what is described as a "vulnerable position" with a young female resident.[5]On 3 April 2000 there was a serious incident in which the Appellant had a disagreement with another social worker in the presence of a resident young person for whom the Appellant was responsible. During the course of a heated debate the Appellant said to the young person words to the effect of "go away or I will kill you".[6]On 5 April 2000 there was an investigation into the incident. The Appellant admitted having shouted at the young person, and accepted that he should not have done so. Hounslow's case was that had the Appellant been a permanent employee, a formal disciplinary hearing would, in all likelihood, have taken place. As it was, the Appellant was not Hounslow's employee, and it decided that the incident of 3 April, along with the other concerns which had already surfaced, were sufficiently serious to lead Hounslow, on 7 April 2000, to terminate the placement of the Appellant, and furthermore to recommend to SWIIS that the Appellant should not be placed as a worker with young people.[7]From Hounslow's perspective, a complicating factor was the fact that in the period leading up to the incident on 3 April, the Appellant had raised concerns about the working practices of another social worker. It was, however, Hounslow's case that these concerns were appropriately addressed by it at a meeting with the social worker concerned on 5 April 2000. It was furthermore Hounslow's case that the decision to end the Appellant's placement was wholly unrelated to the disclosure which he had made regarding the working practices of the social worker concerned.[8]On 13 April 2000, six days after the termination of the Appellant's placement with Hounslow, Julie Plumpton, the assistant manager at RC1 wrote to SWIIS with a critique of the Appellant's working practices whilst at RC1. On 19 April 2000 Janet Adams, the manager of RC1 wrote to SWIIS outlining some of her concerns about the decision to supply the Appellant to RC1. On 25 April, Julie Plumpton wrote to Colin Price at Hounslow's Heston Office recording the fact that she had spoken to Julie Winter at SWIIS regarding some of the problems which RC1 had had with the Appellant. Importantly, she recalls that Ms Winter had told her that she had met the Appellant to discuss this, and that he had raised certain points with her. Miss Plumpton expressed the wish that Mr Price respond to some of those points in writing to Miss Plumpton so that she could pass the information onto Ms Winter. She then raised two specific points for Mr Price relating to what the Appellant had apparently told Ms Winter.[9]On 26 April 2000 the Appellant was placed by SWIIS with an organisation called One Step at a Time in Northolt. On 9 May 2000, Mr Stephen Thompson, the Operations Manager of SWIIS wrote to Ms Adams about the Appellant. The first substantive paragraph of the letter reads:
"I have spoken with Julie Winter to ascertain the facts relating to the supply of the above named worker and am aware that Jes Ladva, SWIIS Senior Consultant, and Julie met with David to discuss the points raised by Julie Plumpton in her letter of 13 th April. I understand that a verbal response has been given to Julie Plumpton."
The letter then contains a discussion of the Appellant's behaviour and SWIIS's approach. It concludes with Mr Thomson recording his instruction that the Appellant was not to be offered any further work within the London Borough of Hounslow, and with his assertion that he was continuing to investigate the Appellant's suitability to work elsewhere.[10]On 26 May 2000 Ms Adams conveyed to Ms Winter ongoing concerns about the Appellant's work with children, his lack of boundaries and possible continuing contact with the client with whom he had been working at RC1. Reference was also made to a Child Protection Investigation by the NSPCC.[11]On 26 June 2000, Julie Plumpton from RC1 faxed to Julie Winter a statement of facts regarding concerns relating to the Appellant while he was working at the Resource Centre, and on 5 July 2000, Ben Makins (Hounslow) wrote to Ms Winter making it clear that Hounslow would not wish to re deploy the Appellant on an agency basis. The date of 5 July 2000 for this letter is of crucial importance, as the balance of this judgment will demonstrate.[12]On 24 July 2000, Mr Stephen Thomson of SWIIS wrote to the Appellant in the following terms:
"Further to our meeting last week and our subsequent telephone conversation I have still not received your report outlining your version of the events leading to the above client dispensing with your services. As I explained to both you and your advocate, Jaynie Petronio, I am extremely anxious to clear this matter up quickly so that you are not disadvantaged by my investigation. I am unable to do this until I receive your report so your early reply would be appreciated."
[13]On 25 July 2000, the Appellant sent an email to Mr Thompson setting out his version of events. Finally, on 27 July 2000 Mr Makins made it clear in a letter to SWIIS that the decision to discontinue the Appellant's placement with Hounslow was in no way an attempt to cover up the allegations in the home or silence a "whistle blower" as alleged. The letter asserts that the Appellant's placement was discontinued solely because of concerns about him as outlined in the various letters and statements sent to SWIIS. However, before that letter was received, SWIIS terminated its engagement with the Appellant. That termination also occurred on 27 July 2000.[14]The Appellant's Form IT1 is dated 18 October 2000, although it was received by the Tribunal on 23 October 2000. It named both SWIIS and RC1 as Respondents. It claims as against both SWIIS and Hounslow: - Unfair dismissal and Breach of the Public Interest Disclosure Act and subjected to a Detriment under the PIDA, loss of chance – stigma damages and personal injury[15]The way the matter was pleaded in the attachment to the Form IT1 was that the Appellant's employment with Hounslow had been abruptly terminated in April, and he had been placed with another employer. However, he had been suspended from that employment by SWIIS following complaints received from Hounslow. His case was that Hounslow was making detrimental comments about him because he had reported incidents of physical and verbal abuse by members of their staff which he had observed whilst working with Hounslow. This had led to SWIIS suspending him on 17 July 2000 and terminating his employment with them on 27 July 2000. As far as Hounslow was concerned, the Appellant acknowledged that: - his employment (with Hounslow) ended some six months ago however they have subjected him to some detriment by making allegations against the (Appellant) after the (Appellant) left their employment and therefore the detriment by Hounslow has been continuous up the time (sic) the (Appellant's termination of employment on the 27 July 2000, such allegations affected the (Appellant's) employment with (SWIIS) …..[16]A letter from SWIIS which is undated, but which accompanies its response to the Form IT1 states that it went into administration on 29 September 2000. As a consequence, proceedings against SWIIS have been stayed.[17]The dilemma which the Applicant faced was that - as he was subsequently and correctly to concede - he had never been employed by Hounslow. He could not, accordingly, make a claim against Hounslow for unfair dismissal. Whether or not he could have claimed unfair dismissal against SWIIS (and the terms of his agreement with them as set out in paragraph 1 of this judgment make that doubtful) was academic, since SWIIS was in administration. A claim for unfair dismissal against SWIIS would not need to have been made until 26 October 2000 (his "employment" with SWIIS having been terminated on 27 July 2000) - so the Form IT1 filed on 23 October was well in time for that.[18]However, to succeed against Hounslow under the Public Interest Disclosure Act 1998 (PIDA) he had to show that he had suffered a detriment consequent upon his protected disclosure – the reporting the incidents he claimed to have observed whilst working at RC1. He therefore had to show an act by Hounslow constituting a detriment which occurred during the three months preceding the filing of the IT1 on 23 October - i.e. on or after 24 July.[19]The question for the Tribunal, accordingly, was whether or not the Appellant's Form IT1 had been filed in time in order to give the Tribunal jurisdiction to entertain the Appellant's claim against Hounslow that he had suffered a detriment by Hounslow making allegations against him after his placement with Hounslow had been terminated - those allegations, it being asserted, having continued up until 27 July, the date on which his employment with SWIIS had been terminated.[20]The relevant provisions of PIDA have all be incorporated into Part IVA of the Employment Rights Act 1996 (ERA). The Tribunal accordingly found that there were three issues it had to resolve:-(a) Whether the Appellant's claim under section 48(1A) of ERA that he had been subjected to a detriment in contravention of section 47(B) had been brought within the time limit set out in section 48(3);(b) Whether the application under section (111) of ERA 1996 had been brought within the time limit in section 111(2); and(c) Whether the Appellant was a person to whom section 47 of ERA applied after the termination of his work for Hounslow.[21]In each case, the time limit in question is three months. Section 48(3) of ERA 1996 reads:
"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."
The Tribunal found that it did not have jurisdiction.[22]Counsel for the Appellant argued below that the time should be deemed to run from 5 July 2000, that being the date of the letter from Ben Makins (Hounslow) to Ms Winter (SWIIS) referred to in paragraph 10 above. Counsel argued that three months from 5 July was 4 October, and the difference between 4 October and 23 October was sufficiently short for it to be arguable that it was not reasonably practicable to issue the Form IT1 within the three months period.[23]Counsel for Hounslow argued that on 7 April the Appellant, by his own admission, knew exactly the reason why his position has been terminated, but even if the date of 5 July was taken, the last date for the issuing of the IT1 of that issue of detriment would be 4 October 2000. The Appellant had seen his lawyers on 21 September 2000, and accordingly it was clearly reasonably practicable either for him or for his solicitors to have issued the application within the three months period.[24]The Tribunal's conclusion was that the Appellant's placement with Hounslow was terminated on 7 April 2000. The Appellant knew at that stage very clearly the reasons why the placement had been terminated, and he therefore should have issued an application against Hounslow within the requisite three months period from 5 April.[25]However, the Appellant argued that the succession of letters passing between SWIIS and Hounslow (to which we have referred) constituted acts of continuing detriment, and prevented him from obtaining employment. The Tribunal took the view, looking at the documentary evidence, that it was clear that SWIIS had discussed Hounslow's concerns with the Appellant, and that at the very latest, the Appellant would have been aware of these at the end of May. Accordingly, it would have been reasonably practicable for him to issue an application by the end of August. There was no reason why the Appellant should have delayed issuing the application until 18 October. The Appellant was accordingly barred by the provisions of section 48(3) from pursuing his claims. In any event, as was conceded by the Appellant, he had never been employed by Hounslow and thus could not bring a claim against Hounslow for unfair dismissal.[26]In seeking to overturn the Tribunal's decision, Mr Ward faced a number of substantial difficulties. The first was his attempt to pray in aid against Hounslow the date of 27 July 2000 (the date of the Appellant's parting of the ways with SWIIS), when before the Tribunal it had been argued that the last act of detriment by Hounslow had been the letter of 5 July 2000 from Ben Makins (Hounslow) to Ms Winter (SWIIS). Mr Ward sought to persuade us that since this was an issue going to jurisdiction, he was not bound by any concession made below, particularly in circumstances where the Tribunal was concerned with whistle blowing and a worker's right "not to be subject to any detriment" on the ground that he has made a protected disclosure. In addition, Mr Ward was able to point to the fact that the form IT1 pleaded that time began to run from the date of the Appellant's dismissal from SWIIS on 27 July 2000. If this was the last of the acts complained of against Hounslow, the Form IT1 was in time.[27]In answer to this attempt to rely on 27 July as the relevant date, Mr Glyn, for Hounslow, argued that there were two acts of detriment undertaken by Hounslow. The first was the termination of the placement on 7 April 2000. The second was the writing of various letters to SWIIS, the last of which was written on 5 July 2000. Accordingly, the expiry of the three month deadlines so far as Hounslow (as opposed to SWIIS) was concerned were respectively 6 July and 4 October 2000. Mr Glyn argued that the decision to terminate the Appellant's placement was a "one off" act that had immediate consequences and was separate and dissimilar from the later correspondence, in which concerns were raised about the Appellant. The act of dismissal was not Hounslow's act, since the Appellant had never been employed by Hounslow. Accordingly, Mr Glyn argued, the concession made below – that the latest date available to the Appellant was three months from the letter of 5 July - was correctly made. The issue date of 23 October made perfect sense when one looked at the Appellant's primary case against SWIIS, since he was dismissed by them on 27 July. That case, of unfair dismissal, is in time.[28]In our judgment, the submissions of Mr Glyn are correct, and must to be preferred. They also accord with common sense. The only difficulty in relation to them could have been the letter of 27 July 2000 from Mr Makins to Mr Thompson, since any repetition of an act of detriment can constitute a fresh act and thus produce a fresh starting date for jurisdiction to run. However, in the instant case, it is common ground that the letter of 27 July 2000 was received by SWIIS after it had dismissed the Appellant. It cannot, accordingly, constitute an act of detriment.[29]In these circumstances, it seems to us (as it seemed to the Tribunal) that the latest date for the filing of the Form IT1 against Hounslow was 4 October 2000, and as the Appellant had seen his solicitors in September 2000, it was plainly reasonably practicable for him to issue proceedings before the closing date of 4 October 2000.[30]In these circumstances, we take the view that the Tribunal reached the correct conclusion and the appeal must be dismissed.