MR A MUSA v ROYAL MAIL GROUP LIMITED [2009] UKEAT 0215_09_1707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0215_09_1707Case No Appeal No. UKEAT/0215/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A MUSAAPPELLANTROYAL MAIL GROUP LIMITEDRESPONDENT
Before
Mr Justice BeanDate 17 July 2009
[1]APPEARANCES For the Appellant MR E BROWN (Appearing under the Employment Law Appeal Advice Scheme) For the Respondent MS L MENSAH (of Counsel) Instructed by: Messrs Weightmans LLP India Buildings Water Street Liverpool L2 OGA SUMMARY PRACTICE AND PROCEDURE Striking-out/dismissal RACE DISCRIMINATION Continuing act A claim disclosing a clearly arguable case of an act of discrimination extending over a period ending with the Claimant's dismissal should not have been rejected at a pre-hearing review as being out of time. THE HONOURABLE MR JUSTICE BEAN This in an appeal by the Claimant against the Decision of Employment Judge Sherratt sitting alone at a pre-hearing review in the Manchester Employment Tribunal on 22 September 2008 dismissing that part of his claim of discrimination which did not consist of allegations of victimisation relating to his dismissal. Introduction[2]Mr Musa, in his originating application form ET1 complained of events beginning in May 2006 with an allegation made by him of racial discrimination against a fellow employee leading to that employee's dismissal. Then, Mr Musa complains, he was subjected to a concerted process of isolation and victimisation in the context of a campaign to reinstate the dismissed fellow employee.[3]The history set out in the ET1 goes on to mention an interview in October 2006 (there is a typing mistake; it says 2007 but it is plainly 2006). In the same month, the Applicant became ill with stress. In December 2006 an investigation into the complaints made by the Applicant upheld allegations against thirteen members of staff, but, the ET1 complains, in January 2007, following further interviews by the employers with staff including those against whom complaints had been upheld, the tables were turned. The Applicant himself was made the subject of investigation and matters proceeded through the first half of 2007 with a case of misconduct being alleged against him and ultimately his summary dismissal on 16 July 2007, a decision affirmed on internal appeal on 4 September.[4]The ET1 was lodged on 15 October 2007. It seems to me to be about as clear a case of an alleged course of conduct of discrimination culminating in dismissal as one could ever see. What the truth is, of course, of any of the allegations does not arise at this stage.[5]The Respondent's grounds of resistance form ET3 deny the complaints on the merits, explain why the Respondent took their decision to dismiss and contend that decision was reasonable. Nothing is said in the ET3 about any aspect of the claim being out of time, nor indeed is it argued that the Claimant had fallen foul of any of the technical traps in the Dispute Regulations 2002 .[6]In November 2007 Employment Judge Feeney rejected the claim under the Race Relations Act 1 976 because no grievance had been presented. The Claimant applied for a review of that decision. It was first treated as an application to amend the form ET1, which had left blank the paragraph about prior notification of a grievance to the employer. Then later it was treated as an application to review Judge Feeney's decision out of time.[7]On 27 March 2008 Judge Sherratt refused to extend time for the review. The case, or what was left of it, was fixed for a hearing on the merits of three days beginning on 2 July 2008. Two weeks earlier Employment Judge Cook acting as Duty Judge looked at the file, realised that the decision about the failure to raise a grievance appeared to be incorrect and caused an email to be sent by the Tribunal staff to the parties in these terms:
"An Employment Judge, Ms V Cook, has reviewed the file and notes that the claimant complains that his dismissal was an act of race discrimination on the grounds of victimisation. As this allegation is related to his dismissal, there is no need for a grievance letter on this point and the Tribunal appears to have firm jurisdiction to hear this dismissal-related allegation and will be able to consider it on 2nd July 2008."
[8]The file was passed back to Judge Sherratt who allowed the Claimant's application to review the decision of Judge Feeney but only insofar as the allegations of victimisation on the grounds of race relate to the dismissal and not further or otherwise.[9]He gave the Respondents the opportunity to contest that review. They did not do so. They conceded jurisdiction insofar as the dismissal was concerned but maintained their stance as regards the earlier allegations of discrimination.[10]At the hearing on 2 July the Tribunal consisted of Judge Cook and two lay members. The Claimant acted in person. Ms Mensah represented the Respondents as she did subsequently before Judge Sherratt and has done so on appeal. Employment Judge Cook adjourned the matter for a review hearing to take place before Judge Sherratt on 22 September 2008.[11]The issues were stated to be, whether there was jurisdiction to consider any other allegations of race discrimination in addition to those concerning the dismissal. In order to do so, the Tribunal noted, it may be necessary to conduct a pre-hearing review to consider(a) whether there had been any written grievances for any earlier complaints or racial discrimination,(b) whether it was just and equitable to extend any time limits for the presentation of claims.[12]At the review hearing on 22 September 2008, (that is the one directed by Judge Cook and her colleagues) Judge Sherratt sitting alone decided that the Claimant's application for a review of the decision to reject that part of his claim which related to discrimination on grounds of race was allowed, but only insofar as the allegations of victimisation on the grounds of race related to the dismissal and not further or otherwise. He did so on the basis that the matters complained of prior to the dismissal were out of time since the dismissal was on 16 July 2007 and the ET1 lodged on the day of the three-month period beginning with that date. The Judge went on to hold it was not just and equitable to extend the time for further allegations of discrimination.[13]In argument before me, Ms Mensah emphasised paragraph 15 of

Judge Sherratt's decision, which I will therefore read in full:

"During the course of various investigations Mr Musa's complaints were reduced to writing by the investigation officers and he signed and sent back those notes often adding many extra paragraphs or amending that which was sent to him. The complaints themselves seemed to relate to a lengthy period of time but in the outcome letter are not specifically dated. What is clear is that the claimant accepts that there were no incidents after 15 October 2006 because he was no longer in the workplace having gone off on sick leave and indeed his evidence was that all of his complaints related to the period before 22 July 2006."
[14]The Claimant, still acting in person, gave notice of appeal against this decision. He made a number of points in the appeal. Suffice to say, for present purposes, that as originally drafted, the Notice of Appeal was unmeritorious. HHJ Birtles so held on the paper sift.[15]The matter then came before HHJ Serota QC on a Rule3(10) application. At this point, fortunately for Mr Musa, he obtained the services of Mr Edward Brown of Counsel acting under the ELAAS scheme. Mr Brown submitted an amended Notice of Appeal adding two points; firstly that the Tribunal failed to consider whether the matters constituted acts extending over a period of time, section 68(7) of the Race Relations Act , and secondly that the Tribunal erred in its consideration of the "just and equitable" extension.[16]In the light of my conclusion on the first of these grounds it is unnecessary to consider the second. I should record also that Judge Serota allowed the appeal to proceed on the basis of Mr Brown's amended grounds and not the original grounds. He only referred to the "act extending over a period" point and it may be therefore that Mr Brown would have needed leave to argue the other point. As I say, I have not found it necessary to hear argument on the "just and equitable" point.[17]It seems to me, with respect to Judge Sherratt, that it is plainly arguable that the matters of which Mr Musa complained in his ET1 constituted an act extending over a period for the purposes of the Race Relations Act , and therefore there is no time bar knocking them out. It is not for me to decide on appeal that all the matters complained of do constitute an act extending over a period. That will be a matter which the Tribunal conducting the hearing into the merits of Mr Musa's claims will be able to decide when it has heard evidence, but I cannot accept that the Employment Judge was right in, as I see it, simply not dealing with the point. As he said himself in paragraph 15, the complaints seem to relate to a lengthy period of time. It is quite clear that Mr Musa's case, whether rightly or wrongly the Tribunal will have to decide, is that he was subjected to a course of discrimination which culminated in his dismissal.[18]Ms Mensah argues that the Claimant did not present the case before the Employment Judge on the basis that this was a single course of conduct. As to that, it may be said: firstly his ET1, as I have already said, clearly alleges a single series of events culminating in a dismissal alleged to be victimisation by reason of the earlier complaints of discrimination; secondly, at the oral hearing the complainant was acting in person; and thirdly the time bar point comes singularly unattractively from the Respondent who did not take it in their grounds of resistance.[19]The Employment Judge made no express finding that these were not matters constituting an act or acts extending over a period. The reference in paragraph 15 to the Claimant accepting in evidence that there were no incidents after 15 October 2006 and before the investigation which led ultimately to his dismissal, appears to me to be of no significance whatsoever. The Claimant was absent from work after 15 October and until the beginning of 2007 because he was off on sick leave with stress. So it is hardly surprising there were no incidents in that three-month period; but that does not begin to establish a firewall or break between the 2006 matters and the 2007 investigation and dismissal. Conclusion[20]Accordingly, the Decision on the pre-hearing review cannot stand. The appeal will be allowed and the case remitted to the Employment Tribunal. Ms Mensah argues that applying the guidance laid down by this Appeal Tribunal in Sinclair Roche & Temperley & Ors v Heard & Anor [2004] IRLR 763 , the case can properly be remitted to Judge Sherratt. With respect to the judge, I think it would be much better for the matter to be dealt with by a new Employment Judge.[21]I will hear argument from Counsel as to what the next stage in the Tribunal should be but my present view, subject to any submissions, is that the case should proceed to a hearing on the merits before an Employment Judge and two members without having further pre-hearing reviews.[22]As Lord Scarman said in Tilling v Whiteman [1980] AC 1 , preliminary points of law are too often treacherous shortcuts. I fear that the lengthy interlocutory history of this case, which has still not come to a hearing on the merits two years after the dismissal, illustrate the wisdom of Lord Scarman's observation.