UNILEVER UK PLC v (1) MR G HICKINSON (2) SODEXO LIMITED [2009] UKEAT 0192_09_2406

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0192_09_2406Case No Appeal No. UKEAT/0192/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
UNILEVER UK PLCAPPELLANT(1) MR G HICKINSON (2) SODEXO LIMITEDRESPONDENTS
Before
His Honour Judge ReidDate 24 June 2009
[1]APPEARANCES For the Appellant MR ROBIN MASON (Solicitor) Employment Law Solicitor 36 Marlborough Road Sheffield S10 1DB For the First Respondent MR G HICKINSON (The First Respondent in Person) For the Second Respondent MS HILARY NORRIS (Solicitor) Sodexo UK & Ireland Legal Services Solar House, Kings Way Stevenage Hertfordshire SG1 2UA SUMMARY VICTIMISATION DISCRIMINATION The First Respondent was employed by the Second Respondent in security at the premises of the Appellant. The Appellant required the Second Respondent to remove the First Respondent after he was discovered making covert recordings of the Appellant's staff. The Second Respondent did not have an alternative position for the First Respondent and dismissed him. The First Respondent alleged he had been subjected to a detriment by the Appellant contrary to s.48(1B) of the Employment Rights Act 1996 . He made his complaint to the ET more than three months after the Appellant required his removal from site but less than three months after his dismissal by the Second Respondent. Held: his complaint was out of time. The detriment was the requirement of removal and the subsequent dismissal by the Second Respondent could not be said either to be an act or deliberate failure to act by the Appellant or part of a continuing act. HIS HONOUR JUDGE REID QC This is an appeal by Unilever UK Limited against a decision of Regional Employment Judge Sneath sitting at Leeds on 6 March of this year on a prehearing review. He concluded in the prehearing review that the claim brought by the Claimant against Unilever was within time and he therefore allowed it to proceed. There were two issues before him but the only issue with which I am concerned is the issue as to time. Introduction[2]The series of events is that Mr Hickinson, the First Respondent to the appeal and the Claimant below, had been employed in security at Unilever's site from October 1992 though, in fact, originally he was employed by Unilever, and his employment was only passed to the Second Respondent, Sodexo, a few years later.[3]As far as one can tell, matters had run pretty smoothly over those many years though things were clearly getting a little fraught early in 2008. On 4 July 2008, Mr Hickinson revealed that he had been making covert recordings of what certain workers at the site were doing and, as a result, on that date an email from Unilever to Sodexo resulted in his being removed from the site. Unilever were no longer prepared to have him working at that site.[4]Sodexo considered over the next few weeks the possibility of employing him at some other site. That did not come to anything and on 2 August 2008 Mr Hickinson was dismissed. He appealed against that dismissal and his appeal was dismissed on 29 September 2008. On 6 October 2008 he brought proceedings by his ET1. "A worker may present a complaint to an employment tribunal that he is being subject to a detriment in contravention of section 47B." By section 47B(1):
"A worker has a 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." "
An employment tribunal shall not consider a complaint under this section unless it is presented: (a) before the end of a 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." "For the purpose of subsection (3) – (a) where an act extends over a period the date of the act means the last day of that period." and (b):
"A deliberate failure to act shall be treated as done when it was decided on."
Unilever's Claim Response to Unilever's Claim Decision re 6 March 2009 Hearing "The act on 4 July set in chain a series of events, the first of which was the removal by the first respondent of the claimant from the second respondent's site. They then obliged the claimant to look for an alternative assignment and when he failed to do so, the first respondent dismissed him. It also dismissed him having regard to the second respondent ' s view of the covert recording, something which, on the face of the letter dated 9 July from the first respondent, had had a mitigating effect on the charge of gross misconduct which he then faced. Be that as it may, I have decided that it would be wholly unrealistic to isolate the complaint in the email of 4 July from its consequences. In my judgment, it is only sensible in terms of what is just to take the act and its consequences as a whole. Doing so means that there was an act over a period and the last day of that period was the date on which the claimant was dismissed. That was 2 August. That fell within the limitation period so that the claim against the second respondent was presented in time." "…I found it impossible to isolate the actions of the second respondent in such a way as to be able to make a judgment about the prospects of the claim against that respondent." "As to the third, there is no doubt that Mr. Knight suffered the alleged breakdown in his health; and that is obviously in one sense a 'detriment' (though as to this, see paragraph 12 below). (3) The act (or omission) of 'subjection"' 10. The Tribunal did not expressly address this step. As noted above, in paragraph 1 of the Reasons it asked simply whether Mr. Knight suffered a detriment 'related to' his having made a protected disclosure; and in the crucial paragraph 17(e) it found that 'the Applicant's medical condition is related to the disclosure'. That elision of the doing by the employer of an act and the suffering by the employee of the detriment meant that the Tribunal never focused on what precisely it was that the Council did or failed to do. That was potentially important, not only because you need to identify the act in order to ask on what ground the employer did it but also - in the present case - because the events which give rise to the present claim straddle the coming into force of the 1998 Act on 2 July 1999, and only acts done on or after that date were capable of founding a complaint under s. 47B. Sometimes the doing of the act and the suffering of the detriment are for all practical purposes identical: for example, where the victimisation takes the form of disciplining an employee, the imposing of the disciplinary sanction by the employer and the suffering of it by the employee are two sides of the same coin. But that is not always so, and it was not in the present case: the Council did not on any view directly inflict Mr Knight's illness on him - the most that could be said was that their acts or omissions caused or contributed to it." "I have the right not to be subjected to any detriment by any act (including recording covertly) in accordance with sec [section] 44 of the ERA. Despite this protection, Unilever have banned me working on their site at Seacroft and Sodexo dismissed me from their employment." "Sodexo failed to make any representations to Unilever on my behalf. And they failed to offer any alternative position." "I am claiming I suffered the ban on 4 July 08, after I made the protected disclosure (using recordings) to Unilever and Sodexo on the 2 nd July 08. The ban was an unfair detriment albeit implemented by Sodexo but it was forced upon them by Unilever pressure. The Unilever pressure was persistent and ensured the ban was extended over a period between 4 th July and 1 st August. Therefore, in accordance with sec [section] 48(4)(a) the 'date of the act' means the last day of that period." "Therefore, taking into consideration all the factors in this matter, it is my decision to uphold your dismissal from Sodexo for a breach of trust and confidence and as a result of Unilever's pressure. Please be advised that my decision is final and you have no further right of appeal." "The claimant was made aware of that complaint dated 4 July 2008 shortly thereafter and it was therefore reasonably practicable for him to have filed his claim within the due time." Conclusion