MR W KHETAB v (1) AGA MEDICAL LTD (2) MR P HODGE (3) MS M DUVNJAK (4) MR F LYNN [2010] UKEAT 0313_10_2110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0313_10_2110Case No Appeal No. UKEAT/0313/10Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR W KHETABAPPELLANT(1) AGA MEDICAL LTD (2) MR P HODGE (3) MS M DUVNJAK (4) MR F LYNNRESPONDENT
Before
His Honour Judge Peter ClarkDate 21 October 2010
[1]APPEARANCES For the Appellant MR SUNGJIN PARK (of Counsel) Instructed by: Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ For the Respondents MR SEAN JONES (of Counsel) Instructed by: Messrs Clifford Chance LLP 10 Upper Bank Street London E14 5JJ SUMMARY PRACTICE AND PROCEDURE Application/claim Amendment RACE DISCRIMINATION – Continuing act Whether necessary to plead a continuing act in form ET1 where Respondent raises a limitation point in form ET3, later dealt with as a preliminary issue at PHR, and argues no continuing act. Employment Tribunal finding that it was, and refusal to allow Claimant to amend reversed. Continuing act issue to be determined at full Employment Tribunal hearing after evidence heard (that evidence being necessary to determine constructive dismissal issue at full hearing). HIS HONOUR JUDGE PETER CLARK Introduction The Claimant Mr Khetab was employed by AGA Medical Ltd from 15 January 2007 until his resignation on 23 July 2009. He describes himself as a British Pakistani (Asian) and a Muslim.[2]On 5 August 2009 he presented a form ET1 to the Reading Employment Tribunal naming AGA and three named individual employees of the company as Respondents. In that claim form he raised the following heads of claim summarised at paragraph 5 of his particulars of claim attached to that form:
"1) Against the Respondents a claim of direct race discrimination contrary to sections 1(1)(a) and 4(2) of the Race Relations Act 1976 ("the RRA") against both of the Respondents. 2) Against the Respondents a claim for religious discrimination contrary to section 3(1)(a) and 6(2) of the Employment Equality (Religion or Belief) Regulations 2003 (EER). 3) Against the Respondents a claim of harassment contrary to sections 5 and 6(3) of the EER against both of the Respondents. (4) Against the Respondents a claim of victimisation contrary to section 2 of the RRA and section 4(1) of the EER against both of the Respondents. (5) A claim of unfair dismissal, alternatively unfair constructive dismissal against the first Respondent. (6) Claims of breach of contract in relation to failure to implement/provide internal grievance and unpaid notice pay and unpaid holiday pay against the First Respondent. (7) A claim pursuant to the Equal Pay Act 1970. (8) Breach of Working Time Regulations."
[3]In short he complained of constructive dismissal, unfair dismissal, wrongful dismissal, and discrimination and harassment on grounds of his race and/or religion. He also added an equal pay claim.[4]By their grounds of resistance in form ET3 the Respondents took, among other defences, a limitation point. At paragraph 5 it was contended that incidents alleged by the Claimant at paragraphs 7 to 59 of his particulars of claim occurred before 6 May 2009, the cut off point for the primary three-month limitation period, were isolated, unconnected incidents which could not constitute an act extending over a period for the purposes of the RRA and the 2003 Regulations (see section 68(7)(b) RRA and regulation 34(4)(b) of the 2003 Regulations respectively). The Claimant could not show a continuing act (to use the common jargon) bringing those incidents within time. Further, it was contended that it was not just and equitable to extend time to bring those incidents within time. The Respondents contended that those parts of the discrimination claim should be struck out.[5]I pause to observe that it was not and could not be contended by the Respondents that the constructive dismissal alleged by the Claimant as supporting his claims of unfair dismissal and both racial and religious discrimination was out of time. Since the constructive dismissal allegation depended on a repudiatory breach of the implied term of the contract of employment of mutual trust and confidence, evidence by the alleged incidents pleaded found in both the claims of unfair dismissal and racial and religious discriminatory dismissal, the Tribunal sitting on a full merits hearing will be bound to hear all the evidence on both sides in relation to those incidents.[6]The limitation point was considered as a preliminary issue at a pre-hearing review (PHR) held before Employment Judge Gumbiti-Zimuto on 23 April 2010, by his judgment with reasons promulgated on 5 May, that Judge ruled(1) that the Claimant's claim form did not contain an allegation of an act extending over a period within the meaning of the provisions of the RRA and 2003 Regulations, to which I have referred,(2) that the Claimant's application to amend the claim form to allege a continuing act be refused, and(3) that it was not just and equitable to extend time backwards beyond 6 May 2009. Against that judgment the Claimant now appeals.[7]The first and in my view critical question in the appeal is whether or not the claim form particulars raise the continuing act contention, and further whether and if so to what extent it was necessary to do so. Legislation[8]I begin with the law. In Commissioner of Police of the Metropolis v Hendricks [2003] IRLR 96 Lord Justice Mummery at paragraphs 48 to 52 explained that the concept of a discriminatory policy, rule, practice, scheme or regime emerging from the earlier cases, which he mentions at paragraph 51, does not tell the whole story when considering whether a continuing act is made out by the Claimant rendering the entirety of his claim justiciable. The question is whether, looking at the substance of the complaints made by the Claimant, the Respondents or any of them are responsible for an ongoing situation or continuing state of affairs in which the Claimant on grounds of his race or religion received less favourable treatment than an appropriate actual or hypothetical comparator, or suffered harassment.[9]In Aziz v First Division Association (FDA) [2010] EWCA Civ 304 (05 March 2010) Lord Justice Jackson helpfully reviewed the earlier cases including Hendricks at paragraphs 30 to 40. The question is whether the various incidents complained of are so linked as to be continuing acts which constitute an ongoing state of affairs. If this question arises at a Tribunal preliminary hearing, the question is whether the Claimant has raised a prima facie case establishing the link. At a full merits hearing the Tribunal will decide on the evidence heard and facts found, whether that link has been established in fact.[10]What those cases do not address, because the point did not arise, is the pure pleading point raised in the present appeal. Mr Jones, who appeared below at the PHR for the Respondents, has provided me with a valuable insight into how that point arose. At an earlier case management discussion (CMD) before the same Employment Judge, the PHR was set up to deal with the limitation issue raised by the Respondent. At paragraph 11 in the second schedule to his case management order dated 10 February 2010

the Judge formulated the PHR issues in this way:

"Whether, having regard to the time limit contained in section 68(1) of the Race Relations Act 1976 (3 months), a Tribunal has jurisdiction to consider the Claimant's complaint of racial discrimination; and (b) a similar question in relation to the 2003 Regulations."
[11]I am not today directly concerned with a further issue as to whether the Complainant had complied with the statutory grievance procedure in accordance with section 32 of the Employment Act 2002 .[12]When the parties arrived for the PHR hearing, counsel exchanged skeleton arguments for the purposes of that hearing. In his written argument, counsel for the Claimant Mr Oxton contended that at this preliminary stage the question was whether the Claimant raised a prima facie case of a continuing state of affairs. He contended that he had. Counsel then agreed that that question required a volume of evidence which rendered it impracticable for the point to be determined at the PHR.[13]Instead the hearing proceeded on the question (Mr Jones tells me on the Employment Judge's initiative) as to whether the claim form raised a continuing act. Mr Oxton contended that it did, Mr Jones arguing to the contrary. Out of what seems to me an abundance of caution, Mr Oxton applied to amend his client's particulars of claim by adding the words:
"The incidents identified in the claim form and identified in the table [that is a table of allegations and causes of action in Mr Oxton's skeleton argument] are continuing acts."
[14]For the reasons which he gave, the Judge held(a) that the continuing act contention did not appear in the ET1 particulars of claim and(b) that the amendment application should be refused.[15]At this point in the story it is worth taking a step back. What is the purpose of pleadings in the Employment Tribunal? It is so that the other party and the Employment Tribunal understand the case being advanced by each party so that his opponent has a proper opportunity to meet it. In this case the Respondents' solicitor, when settling their response to the various claims raised by the Claimant in his form ET1, properly raised a partial limitation defence and additionally countered any suggestion that the incidents complained of by the Claimant amounted to a continuing act.[16]The limitation issues formulated by the Judge at the CMD for determination at the PHR were directed to the question as to whether the Claimant had raised a prima facie case that there was here a continuing act. Yet that question was never answered substantively at the PHR. Mr Jones, with characteristic ingenuity, submits that at the PHR it was argued on behalf of the Claimant that there were here two separate continuing acts; an ongoing act of direct discrimination and a separate ongoing act of harassment, the former not extending beyond 6 May 2009 cut off date. Since that way of putting the case does not appear from the ET1 particulars of claim, the Employment Judge (submits Mr Jones) was entitled to find that the continuing act contention had not been pleaded and that an amendment was necessary, which amendment was properly refused because it raised a new case, applying ordinary Selkent principles.[17]I am unable to accept that submission. In my judgment Mr Park is correct in submitting that on its face and read as a whole, the lengthy ET1 particulars of claim sufficiently identify a series of alleged incidents said to be racially or religiously motivated in the non- Nagarajan sense, which are linked not least by the omnipresence of the Second Respondent Mr Paul Hodge. In my view the Judge focussed impermissibly on a pure pleading point, in the pejorative sense of that expression, without focussing first on the question, were the Respondents sufficiently on notice that the point may be deployed in answer to any limitation bar raised by the Respondent, or failing that the Employment Tribunal on its own initiative? Plainly they were because they responded to the continuing act question in their form ET3 particulars. In my judgment either the point ought to be dealt with at a PHR or more sensibly in the present case, where all the allegations have to be heard and determined at the full merits hearing anyway on the constructive dismissal question, at that full hearing. Conclusion[18]To that extent I shall allow this appeal and set aside the first two rulings of the Employment Judge. The point is sufficiently raised in the ET1 particulars of claim. No amendment was necessary. However, that is not the end of the matter. The Judge heard evidence from the Claimant at the PHR. He determined that having excluded the continuing act debate on the basis of the Claimant's pleading, it was not just and equitable to extend time so as to render justiciable individual complaints of discrimination which pre-dated 6 May 2009. On this aspect of the case, given the broad discretion granted to the Employment Judge, (see the observations of Mr Justice Phillips in Hutchison v Westward Television Ltd [1977] ICR 279) I entirely accept Mr Jones' submission that there are no grounds in law for interfering with the Employment Judge's exercise of his discretion for the reasons which he gave at paragraphs 25 to 28 in refusing to extend time.[19]It follows that I shall allow the appeal to the extent that the continuing act question is referred for determination by the Employment Tribunal which is seized of the full merits hearing of this case. In the event of a finding that there was here no continuing act or complaints of unlawful discrimination pre-dating 6 May 2009 those complaints will not be justiciable by that Tribunal, the Employment Judge's ruling that it is not just and equitable to extend time remaining in place.[20]Finally, I note that at the PHR the Employment Judge did not, in view of his earlier findings, rule on the section 32 Employment Act question formulated at paragraph 11(c) of the second schedule to his CMD order dated 10 February 2010 (see PHR reasons paragraph 29). Therefore that statutory grievance issue remains live between the parties.