MS B FULLERTON v INTERIGHTS INTERNATIONAL CENTRE FOR THE LEGAL PROTECTION OF HUMAN RIGHTS [2010] UKEAT 0251_09_1902

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0251_09_1902Case No Appeal No. UKEAT/0251/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS B FULLERTONAPPELLANTINTERIGHTS INTERNATIONAL CENTRE FOR THE LEGAL PROTECTION OF HUMAN RIGHTSRESPONDENT
Before
His Honour Judge RichardsonDate 19 February 2010
[1]APPEARANCES For the Appellant MS SUSAN L BELGRAVE (of Counsel) Instructed by: Islington Law Centre 161 Hornsey Road London N7 6DU For the Respondent MR OLIVER ISAACS (of Counsel) Instructed by: Messrs Berry Smith LLP Solicitors 1 Northumberland Avenue Trafalgar Square London WC2N 5BW SUMMARY JURISDICTIONAL POINTS: 2002 Act and Pre-Action Requirements Claim in Time and Effective Date of Termination Extension of Time: Reasonably Practicable The Tribunal at a pre-hearing review erred in law in holding that the Appellant was barred by section 32(2) from bringing(1) certain complaints of racial harassment and(2) a specific complaint concerning one particular individual employee. The Appellant had complied with step 1 of the grievance procedure in these respects. Appeal allowed in respect of these complaints. Cross appeal in respect of other issues, where the Appellant was successful, dismissed. The Tribunal at a pre-hearing review erred in law in holding that the Appellant was time barred from proceeding with discrimination complaints. The Tribunal ought to have applied the principles set out in Hendricks v Metropolitan Police [2003] IRLR 96 and directed that issues relating to time bars be determined at the merits hearing. HIS HONOUR JUDGE RICHARDSON I have before me an appeal and a cross-appeal against certain aspects of a judgment of the Employment Tribunal (Employment Judge Weiniger sitting alone) dated 30 March 2009. By his judgment on a pre-hearing review Employment Judge Weiniger determined preliminary issues concerning (1) whether certain complaints were barred by section 32(1) of the Employment Act 2002 , (2) whether they were brought in time, having regard to the 3 month time limit imposed by section 68 of the Race Relations Act 1976 and section 76 of the Sex Discrimination Act 1975 and(3) if so, whether it would be just and equitable to extend time. Background and Issues[2]Interights is a small human rights charity employing about 23 people. Bernice Fullerton was employed by Interights from early 2005 onwards, becoming Facilities and IT Manager in December 2005. By letter dated 10 June 2008 she resigned, giving notice which expired in early September 2008.[3]It is necessary for the purposes of this appeal to summarise her complaints against Interights and its staff. I emphasise that these complaints have not been adjudicated upon in any way and are hotly contested. As analysed by the Employment Judge, her principal complaints may be summarised as follows.[4]First, she complained of bullying and harassment by Mr Curran, her line manager. She alleged that this behaviour had been ongoing from 2005 until 15 January 2008. She lodged a written grievance in respect of this behaviour on 24 January 2008 ("head one").[5]Second, she complained of the way in which investigation of her grievance was conducted and of the outcome of that grievance ("head two"). The grievance was investigated by two directors of the charity, Ms Cook and Dr Linton. The outcome, announced on 20 March, rejected the grievance. She appealed against that outcome.[6]Third, she complained of a further incident of misconduct by Mr Curran on 10 April 2009 ("head three").[7]Fourth, she complained that Mr Geer, another manager, on 27 May resiled from a promise that she would be managed by someone other than Mr Curran ("head four").[8]Fifth, she complained that the panel who heard her appeal reached unreasonable conclusions, in that despite a finding of procedural flaws in the earlier grievance investigation the panel rejected her appeal ("head five"). The decision rejecting her appeal was notified to her on 10 June 2008. She resigned that very day.[9]Ms Fullerton has made two claims to the Tribunal in which she raises these complaints. The two claims were the subject of a case management discussion on 16 January 2009, and are proceeding together.[10]The first claim was presented on 30 September 2008. It is a claim of constructive dismissal. As clarified at the case management discussion, it relies on all the elements of complaint to which I have referred. The claim form expressly stated that a claim of race discrimination would be filed as a separate complaint.[11]The second claim was presented on 9 December 2008. It is a claim encompassing allegations of race discrimination, racial harassment, sex discrimination and sexual harassment. Again as clarified at a case management discussion it relies on all the elements of complaint to which I have referred.[12]At the case management discussion it was established that as regards the second claim there were jurisdictional and time bar issues. On behalf of Interights it was suggested that these were best dealt with at the full hearing of the Tribunal proceedings. However the Employment Judge seised of the case management discussion ordered a pre hearing review to consider those issues. Employment Judge Weiniger presided over this pre hearing review on 26 February 2009. He gave judgment with reasons on 30 March 2009. Employment Act 2002[13]Section 32(2) of the Employment Act 2002 , now repealed and unlamented, was applicable to the claims which Ms Fullerton brought. I need not set it out in full. It prohibited an employee from presenting a complaint to the employment tribunal if it concerned a matter to which a statutory grievance procedure applied, unless the employee had complied with step 1 of the statutory grievance procedure. In this appeal the relevant statutory procedure was the Standard Grievance Procedure laid down within Schedule 2 of the Employment Act 2002 . The requirement of Step 1 is that - "The employee must set out the grievance in writing and send the statement or a copy of it to the employer"[14]Since 2004 these provisions have been the subject of a vast quantity of litigation in employment tribunals and numerous appeals. The authorities on the requirement of step 1 are well known. The leading cases are Shergold v Fieldway Medical Centre [2006] IRLR 76 and Canary Wharf Management Ltd v Edebi [2006] IRLR 416 . Put shortly, the statement must be in such terms that, on a fair reading of it, the employer can be expected to appreciate that the relevant complaint is being raised. The statement need not be read in isolation; the context, in particular earlier communications between the employer and employee, may be taken into account. No formality is required in the statement. It is enough to identify the complaint; setting out the basis of the complaint comes later, at step 2.[15]Given these authorities it is therefore not surprising that the issues between the parties concerning the application of section 32(2) are limited.[16]As regards head one, the Employment Judge found that Ms Fullerton complied with Step 1 on 7 March and again on 4 April: see paragraphs 23, 27 and 63 of his reasons. The grievance related to both race discrimination and sex discrimination and harassment. There is no appeal from this finding.[17]As regards head two, the Employment Judge found that Ms Fullerton complied with Step 1 on 7 July in respect of race discrimination but not in respect of racial harassment or sex discrimination: see paragraphs 40 and 74 of his reasons. It is common ground that the Employment Judge erred in law in this respect. I agree with the concession which Interights makes. Applying the authorities to the particular facts of this case, the email of 7 July coupled with the letter dated 10 May, it is not possible to draw any sensible distinction between race discrimination and racial harassment. However there is a cross appeal against this finding. Interights says there is no compliance with step 1 at all as regards head 2.[18]As regards head three, the Employment Judge found that Ms Fullerton had not complied with step 1: see paragraphs 38 and 62 of his judgment. It is common ground that the Employment Judge erred in this respect. Again, I agree. The reasons will become apparent in a moment. The appeal will be allowed in this respect.[19]As regards head four, the Employment Judge found that on 7 July Ms Fullerton had complied with step 1 as regards race discrimination but not as regards racial harassment or sex discrimination: see paragraphs 39 and 68. As I have already said, it is common ground the distinction between race discrimination and racial harassment is not sustainable in the circumstances of this case. However, there is a cross appeal against this finding. Interights says there is no compliance with step 1 at all as regards head four.[20]As regards head five, the Employment Judge found that on 7 July Ms Fullerton had complied as regards race discrimination but not as regards racial harassment or sex discrimination: see paragraphs 41 and 80-81. Once again, it is common ground that the distinction between race discrimination and racial harassment is not sustainable in the circumstances of this case. Again, however, there is a cross appeal against this finding. Interights says there is no compliance with step 1 at all as regards head five.[21]In order to determine the cross appeal in respect of heads two, four and five, it is necessary to refer in particular to two documents.[22]The first is Ms Fullerton's letter of resignation dated 10 June. The material parts read as follows:
" Resignation: Personal Injury As required by my contract of employment I hereby give you 3 months notice of my intention to resign my position of IT & Facilities Manager. Therefore, my last working day will be 3 rd September 08. I have tendered my resignation because of Interights continued failure to manage or act on my work related stress as detailed in my Notice of Grievance and Notice of Appeal and as evidenced by Interights letter of 21 st May 2008 whereby Interights refused to agree reasonable adjustments regarding a change of line management and thereby continuing to place me in a situation that has caused me stress and anxiety over the last 3 years and continues to do so. Therefore, Interights have not provided me with a safe working environment which is a fundamental breach of my contract. Furthermore, Interights stance is in direct contravention of a number of employment statutory obligations…."
[23]After referring to the Health and Safety at Work Act 1974 , the Management of Health and Safety at Work Regulations 1999 and the Protection from Harassment Act 1997 she continued:
"Contract of Employment – pertaining to the mutual obligation of trust and confidence which has been significantly undermined if not destroyed by Joe Curran's 'not so' confidential memo dated 13 th February 08 + a number of incident/s during the grievance and appeal process + the non disclosure of a number of documents/interview conducted by the grievance panel with Joe Curran (as per my appeal notice) e.g. "
BF grievance – her opening statement – JC response." etc etc."[24]The letter of resignation does not mention any form of discrimination. However, on 7 July Ms Fullerton sent an email in the following terms:
"Appendix to my resignation letter and subsequent to a review (legal) of the material evidence (paper-based and electronic) I write to inform you that I will also be pursuing a claim for constructive dismissal and race discrimination the foundation of which will be notified to Interights in due course."
[25]Interights' argument on the cross appeal runs as follows. Heads 1 and 3 were concerned with the conduct of Mr Curran. It had long been apparent that Ms Fullerton was complaining about Mr Curran; there were earlier grievances in respect of head 1, as the Employment Judge found. All earlier grievances, on the Employment Judge's findings, related only to head one. However, heads two, four and five are concerned with the conduct of management in dealing with the grievance, considering whether to change the person to whom she reported, and dealing with the appeal. This is a fundamentally different matter. The letter dated 10 June and the email dated 7 July do not put Interights on notice of any claim on that basis.[26]I reject this argument. I consider that the Employment Judge was entitled to find that the email dated 7 July read with the letter dated 10 June, as I consider it must be, sets out a grievance which covers heads 2, 4 and 5. My reasons are as follows.[27]The letter dated 10 June refers to a "continuing failure to manage or act on my work related stress as detailed in my Notice of Grievance and Notice of Appeal". This letter plainly encompasses a complaint about the management and outcome of the grievance and appeal. There are also complaints about the process adopted by the grievance panel. Further there is reference to refusal to agree to reasonable adjustments as regarding a change in line management.[28]The letter dated 7 July then makes two complaints which are absent from the earlier letter – constructive dismissal and race discrimination. The claim of constructive dismissal would be read as encompassing all the complaints in the letter dated 10 June. I see no reason why the reference to race discrimination should be read in any other way. It is true that the email goes on "..the foundation of which will be notified to Interights in due course". But step 1 does not require detail; it requires the employer to be on notice of the kind of claim; and I consider that, read together, the letter dated 7 July and the earlier letter dated 10 June serve this purpose. The letter dated 7 July tells Interights that Ms Fullerton will complain of race discrimination in the respects set out in the letter dated 10 July. The details of her claim could follow.[29]The appeal will be allowed. It will be declared that Ms Fullerton complied with step 1 as regards race discrimination and racial harassment claims within each head. It will also be declared that Ms Fullerton complied with step 1 as regards head three. The cross appeal will be dismissed.[30]For the avoidance of doubt, the Employment Judge's conclusions as regards compliance with step 1 in respect of sex discrimination claims will stand. Ms Fullerton complied with step 1 as regards sex discrimination only in respect of head one. It is true that the Employment Judge did not consider head 3; but if he had done so it would have been on the basis of the email dated 7 July coupled with the letter dated 10 June. This grievance expressly and clearly related to race discrimination. Extension of Time[31]Section 68 of the Race Relations Act 1976 provides:
"68 Period within which proceedings to be brought (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; or (b) in a case to which section 75(8) applies, the period of six months so beginning. (6) A court or tribunal may nevertheless consider any such complaint or claim 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- (a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and (b) any act extending over a period shall be treated as done at the end of that period; and (c) a deliberate omission shall be treated as done when the person in question decided upon it; and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."
[32]The Employment Judge considered each of the five heads separately and in turn. As regards heads two to five, he was considering a claim of race discrimination, having excluded claims of racial harassment and sex discrimination by his earlier rulings. For reasons that I have given, and which are common ground, he ought not to have excluded claims of racial harassment.[33]As to head one, he found that the primary limitation period ended on 14 August 2008. He reached this date in the following way. He treated all the complaints encompassed within head one as a continuing act. He found that the primary limitation period under section 68 would have ended on 14 April but that, since there was a grievance prior to that date, the period was extended by a further 3 months: see reg 15(1)-(3) of the Employment Act 2002 (Dispute Resolution Regulations) 2004 . The complaint of discrimination was not made until the second claim form was presented on 9 December. It was accordingly nearly 4 months out of time. The Employment Judge declined to exercise his discretion to extend time on the just and equitable ground. See paragraphs 63-66.[34]As to head two, he found that the 3 month primary time limit expired on 19 June. It was not extended, because the only grievance was after that date. The complaint was accordingly more than 5 months out of time. He declined to extend time. See paragraphs 73-76.[35]As to head three, because he found that there was no grievance, he did not go on to consider the time point: see paragraph 62. As I have said, it is common ground that there was a sufficient grievance. If he had considered the time point, he would have found that the primary limitation period expired on 9 July. However by that time there was a grievance, so the period was extended until 9 October. Accordingly the claim would still have been out of time by 2 months.[36]As to head four, he found that the primary limitation period expired on 26 August, but it was extended by 3 months by reason of the grievance. Accordingly it expired on 26 November. The complaint was out of time by about 13 days. He declined to extend time. See paragraphs 68-72.[37]As to head five, he found that the claim was in time. I am not sure that I have altogether followed his reasoning for doing so (paragraph 84 of the Reasons) and I suspect that there may be a different route to the same conclusion; but nothing turns on that for the purpose of this appeal.[38]The Employment

Judge summarised his approach to section 76 at paragraph 51:

"51. As mentioned the primary time limit under RRA is three months from the date of the act complained of, but this is subject to the statutorily prescribed discretion to extend in RRA. The discretion to extend time on the basis that it is just and equitable is wide but must be judicially exercised. Limitation periods are prescribed and provide an accrued time defence, and reasons have to be given for exercising discretion. I have to consider what, if any, explanation is given for delay? Was the delay to await internal proceedings and why? Prejudice is relevant and includes consideration of the length of delay, the effect on memories, and the availability of witnesses and documents and the risk of difficulty to an employer in identifying who is a relevant witness and what may be relevant documents. Is it unfair to either party to proceed? Is the Respondent in any way responsible for the delay? All the circumstances of the particular case are to be taken into account."
[39]The Employment Judge set out findings of fact relating to his exercise of the "just and equitable" discretion at various points in his reasons. He dealt in some detail at paragraphs 54-60 with Ms Fullerton's health. His conclusion at paragraph 60 was:
"60. I have to consider whether in 2008 the degree of illness affected her ability to manage her affairs. I accept the submission of the Respondent that she was over egging her illness as an excuse. Rather than getting progressively worse from June to October 2008 as she claimed in her evidence, that was a period when the medical evidence provides her symptoms were progressively decreasing. She was able to write and communicate concerning her allegations in the various documents sent to the Respondent between 24 January and 7 July 2008, and to communicate with Unite. I add for the avoidance of doubt that I make no finding as to matters concerning the cause and origin of her illness, as I am concerned only with the question whether the extent of the effect on her impacted on her ability to deal with her affairs including in relation to her making her grievances internally and issuing her claims in the Tribunal. Her assertion she was getting progressively worse to October 2008 is belied by the fact that she was capable of issuing CF1 at the end of September. Rather than being unable to address her affairs she has done so by issuing a claim for constructive dismissal in CF1, and issued it in time."
[40]The principal reasoning of the Employment

Judge for declining to extend time is found at paragraph 66 in the context of the head one claim:

"66. I note that on 24 January 2008 the Claimant sent a cogent grievance. She delivered both an oral and written grievance and attended a meeting of some 4 hours with her union representative on 7 March. I am satisfied although unwell, she was not unable to conduct her affairs particularly with respect to raising her contentions against the Respondent in the internal grievance processes. She followed up her engagement with the internal processes on 7 March with her appeal, her resignation, her review of her material, her letter of 7 July, and her collation of information about time limit and documents from the Employment Tribunal. Her absence in Bristol did not affect her as she had access to a computer, as she had when she visited the Employment Tribunal website in June. She had knowledge of the time limits, of the facts of her claims, and knowledge of and opportunity for legal advice from any source she might engage. I have had no credible explanation for the delay. For the reasons I have given I reject her explanation that her illness prevented her from dealing with her Employment Tribunal claims. She did make a claim to the Tribunal on 30 September as I have said above, in time. Her hospital attendance in July was for a few days, her computer difficulties in September were overcome she told me by use of the post. The Respondent has an accrued time defence and to deprive them of this would cause them prejudice. This is not simply to be removed to facilitate an out of time claim as that would amount to ignoring the statutory time limits. Race and sex were raised at least by 7 March 2008, and possible causes of action were set out in paragraph 6.1 of the downloaded Claim Form, so it is clear the Claimant had knowledge of a cause of action and the facts giving rise to a cause of action. While the Claimant may not be able to include all her claims if I were not to extend time, she has justiciable claims to argue which may result in remedy for her so any prejudice to the Claimant is not absolute. Given that the Claimant could manage her affairs the Respondent cannot be responsible for the delay. I take account of the 7 November letter raising the topic. I have taken into account all the circumstances of the case and the factors I have expressed in my recitation in the section headed "law" above, including the length of the delay in respect of this part of the claim defined at CMD. Some factors are in favour of the Claimant and some are against. I must weigh everything and exercise my discretion. The discretion is not an indulgence but is to be exercised judicially. In my judgment the appropriate decision is not to allow extension of time for the claims against Mr Curran to 15 January 2008."
[41]In dealing with other claims, the Employment Judge referred back to this reasoning.[42]On behalf of Ms Fullerton, Ms Belgrave submits that the Employment Judge erred in his approach to the time limit questions. In particular she relies on Hendricks v Metropolitan Police [2003] IRLR 96 . She submits that the Employment Judge gave insufficient attention to the question whether the various heads of complaint might be considered a continuing act for the purposes of section 68 (see section 68(7)(b)). By treating the heads as separate from each other the Tribunal has not done justice to the overall case which she put forward. It should have been left to the merits Tribunal to determine if and how to sever the claims. The grievance and dismissal all occurred within 6 months of each other and are all part of one continuum which culminated in her resignation. Ms Belgrave also submits that the Employment Judge was wrong to require, in effect, that Ms Fullerton should have been incapable of managing her affairs; and if necessary, Ms Belgrave also submits that the Employment Judge's decision was perverse.[43]On behalf of Interights, Mr Isaacs submits that the Employment Judge must have considered whether the different heads could form part of one continuous act. He submits that it is implicit that he did so from paragraph 63 of his judgment, where he considered that the various complaints against Mr Curran encompassed within head one were a continuing act. It was a necessary part of his consideration of section 32: he refers to Allen v SOS for Work and Pensions [2010] UKEAT/0498/08, BAILII: [2010] UKEAT 0498_08_1901 at paragraphs 22 and 27. He submits that the Employment Judge fell into no error of law; took into account a wide range of factors as he was required to do; and reached a permissible decision.[44]I turn to Hendricks v Metropolitan Police [2003] IRLR 96 . In this case the claimant, a police officer with 11 years of service, presented a complaint setting out many specific allegations of discrimination, involving a large number of officers. A Tribunal took the view that the acts or omissions of which she complained amounted to a continuing act. The Appeal Tribunal reversed that decision. The Court of Appeal restored the decision of the Tribunal, holding that on the material before it the Tribunal was entitled to make a preliminary decision that it had jurisdiction to consider the allegations of discrimination; see Mummery LJ at paragraph 48. He continued, in a passage which has often been cited and applied:
"48…. She is, in my view, entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'. I regard this as a legally more precise way of characterising her case than the use of expressions such as 'institutionalised racism', 'a prevailing way of life', a 'generalised policy of discrimination', or 'climate' or 'culture' of unlawful discrimination. 49. At the end of the day Miss Hendricks may not succeed in proving that the alleged incidents actually occurred or that, if they did, they add up to more than isolated and unconnected acts of less favourable treatment by different people in different places over a long period and that there was no 'act extending over a period' for which the Commissioner can be held legally responsible as a result of what he has done, or omitted to do, in the direction and control of the Service in matters of race and sex discrimination. It is, however, too soon to say that the complaints have been brought too late. 50. I appreciate the concern expressed about the practical difficulties that may well arise in having to deal with so many incidents alleged to have occurred so long ago; but this problem often occurs in discrimination cases, even where the only acts complained of are very recent. Evidence can still be brought of long-past incidents of less favourable treatment in order to raise or reinforce an inference that the ground of the less favourable treatment is race or sex. 51. In my judgment, the approach of both the employment tribunal and the Appeal Tribunal to the language of the authorities on 'continuing acts' was too literal. They concentrated on whether the concepts of a policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken, fitted the facts of this case: see Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 at paragraphs 21-23; Rovenska v General Medical Council [1997] IRLR 367 at p371; Cast v Croydon College [1998] IRLR 318 at p322 (cf the approach of the Appeal Tribunal in Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69 at p72 where there was an 'accumulation of events over a period of time' and a finding of a 'climate of racial abuse' of which the employers were aware, but had done nothing. That was treated as 'continuing conduct' and a 'continuing failure' on the part of the employers to prevent racial abuse and discrimination, and as amounting to 'other detriment' within s4(2)(c) of the 1976 Act). 52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be sidetracked by focusing on whether a 'policy' could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed."
[45]In this case the Employment Judge has, to my mind, treated the complaints of Ms Fullerton in separate compartments to an extent which is greater than warranted at this preliminary stage in the proceedings. I have considerable sympathy for him in doing so; analysis for the purposes of section 32(2) of the Employment Act 2002 required him to consider the case in compartments. But he ought then, for the purposes of section 68, to have looked at the picture more broadly. I do not think he did so: the principles in Hendricks , although cited to him, do not find any significant place in his reasoning.[46]I bear in mind, of course, that Ms Fullerton's complaints are contested. At this preliminary stage, however, they must be considered as they are put. I would have thought it plain that heads 2, 4 and 5, all of which deal with the handling of her complaints about Mr Curran by management, executive and non executive, are capable of being regarded as a continuing act culminating in the outcome of the grievance appeal on 10 June. Whether in the end she will bring this case home is a different matter; but at this preliminary stage I do not think it can or should be ruled out.[47]The position as regards heads 1 and 3 is less straightforward. They are complaints against Mr Curran himself, rather than against other members of management. But Mr Curran is himself a member of management in the same, relatively small, organisation, and I do not think it can be ruled out at this stage that the whole of Ms Fullerton's complaints may be characterised in terms of a continuing act.[48]It follows that the appeal will be allowed. Except for the claims of sex discrimination in respect of heads 2-5 the claims will proceed to a merits Tribunal. It will be for the merits Tribunal to decide time points as part of the merits hearing.[49]It will be recalled that under head one alone there is a grievance not only in respect of race discrimination but also in respect of sex discrimination. It seems to me inevitable that, once it is decided that time points relating to the race discrimination complaints will go to a full hearing, so should time points in relation to sex discrimination in respect of head one. Whether it is just and equitable to extend time in respect of a sex discrimination claim in respect of head one cannot (on the facts of this case) be decided in isolation without reference to the outcome of time points in respect of the race discrimination claim.[50]I should say a word about other aspects of the Employment Judge's reasoning. I would not have found that it was perverse, if that had been the only ground of complaint. I would not have found that there was any fundamentally wrong approach to the medical evidence or its relevance. Speaking for myself, I would have been more concerned whether he had balanced and weighed the respective prejudice to the parties of allowing, or not allowing, the claim to proceed, especially bearing in mind that even if the discrimination claims are barred much of the same ground must be covered to defend the constructive dismissal claim.[51]I make it clear that the merits Tribunal will not be bound by any view or finding of fact expressed by the Employment Judge on the question whether it is just and equitable to extend time; the merits Tribunal will in all probability hear a great deal more evidence from Ms Fullerton and others, and will form its own view of her evidence and whether it is just and equitable to extend time. The merits Tribunal should decide time points entirely afresh.