Croker v Surrey County Council [2012] UKEAT 0358_11_1811

EAT
Croker v Surrey County Council
[2012] UKEAT 0358_11_1811 · 2011-11-18
[1]This is an appeal against a decision of the Employment Judge Zuke made on 2 February 2011, whereby he rejected the Appellant’s claim on the basis that it was out of time. The Appellant, Mr Croker, was a retained firefighter with Surrey County Council. In August 2003 he broke his finger whilst on duty. In due course he brought a personal injury claim in respect of that break, in the Guildford County Court in 2006.[2]In July 2007, Surrey County Council started a disciplinary investigation against him relating to certain claims that he made from July and August 2003 for wages, overtime and travel. The letter informing him of that disciplinary investigation is at pages 121 to 122 in the bundle of documents that I have received, and I should say in fact it starts on page 119, and the letter itself is dated 20 November 2007, so it comes some time after the disciplinary investigation was started.[3]It sets out, on pages 121 and 122, the various matters that are to be investigated. It talks about, first of all under a heading “Normal Hours of Work”, it says “we therefore believe you may have provided incorrect information regarding your normal hours of work on the claim form submitted”. It then talks about overtime claimed for 16 August, and says “records submitted to the Service suggest that only four hours overtime was available on this occasion”, as opposed to five hours, which had been claimed.[4]Then it deals with overtime claimed on 20 August and says that “only 14.25 hours were available” as opposed to 16.25 which had been claimed, and it says, in relation to those two overtime claims, “we therefore believe you may have provided incorrect information in relation to both the above overtime claims”, and then it deals with mileage and travel time, and it says “we therefore believe that you were not entitled to claim either mileage or travel time as declared on the claim form (P195)”. Then it says “the discipline procedure has been moved from the informal to the first formal stage”.[5]It is right to say, in relation to this disciplinary investigation, first of all that it did not directly arise from the personal injury claim. The matters that were being investigated came to light, I think, as a result of the claim. Secondly, it is right to right to record at this stage that the word “fraud” is not used in that letter, although it is perhaps implicit in what is said and what I have read out.[6]On 27 July 2009, that is two years after the disciplinary investigation had been commenced, the personal injury action concluded at Guildford County Court. At Guildford County Court, Mr Croker was present and representatives of Surrey. What exactly was said on that occasion about the disciplinary investigation is a matter of dispute. The Appellant’s case, as put to Judge Zuke, was, and I’m now quoting from Judge Zuke’s decision, page 76, paragraph 16, “even as the Claimant puts it [that is the Appellant], he was told that the disciplinary process would be finalised shortly after that hearing.”[7]It is fair to say that that wasn’t exactly the way it was put in the Appellant’s counsel’s summary, which is a document at pages 46 to 48 and, in fairness, I should quote exactly the way it had been put by Martin Ward, who was counsel for Mr Croker at that hearing. What he said in his summary was this (paragraph 6 at page 47):
“6. Mr Croker’s case is that the Respondent’s representative was specifically asked to confirm at that hearing [that is the hearing at Guildford County Court] that the allegations which were the subject of the disciplinary proceedings would be retracted, but the Respondent’s representative would not confirm this would be done. He simply indicated that it was unlikely that those disciplinary proceedings would go any further. 7. With the disciplinary proceedings apparently still proceeding, Mr Croker submitted a grievance on 27th May 2010 regarding the Respondent’s failure to finalise the disciplinary case. He sought a retraction of the allegations made against him. This was not provided. Mr Croker therefore appealed that decision.”
[8]The Appellant has told me today, in the course of this hearing, that after the conclusion of his personal injury case on 27 July 2009, he or his solicitors wrote to Surrey on a number of occasions, complaining that nothing had been done about disciplinary proceedings but that he was ignored, and he therefore started a grievance, as I have already mentioned, on 26 or 27 May 2010, to the effect that he had not been told what was happening about the disciplinary investigation.[9]That, initiating that grievance, finally led to a letter which is central to Mr Croker’s case today, which is at page 170 in my bundle and which is dated 4 August 2010. In that letter, on behalf of Surrey County Council, a Mr Owen-Hughes said this, under the heading “Grievance 1”:
“Having reviewed the case and spoken to the SCC legal advisor, I understand that an agreement was made between both parties at the conclusion of legal proceedings [that must be the Guildford County Court] whereby no further action would be taken by either parties [sic] in regard to overpayment and fraud vs. personal injury claim. I do not believe that there are any outstanding issues surrounding the fraud case and this process was therefore concluded.”
[10]That letter is the first mention of the word “fraud” and that, as I will describe is, Mr Croker says, significant. Three months after that letter the claim form in these proceedings was put in on 3 November 2010. It is important that I quote again from the ET1, and that’s at page 29, which said as follows:
“1. The Claimant, whilst employed by the Respondent, sustained an injury which he believed resulted from the Respondent’s failure to comply with its legal obligations and/or involved an endangerment to his health and safety. 2. In notifying the Claimant of the said personal injury claim [and that must have meant the Respondent] the Claimant made a protected disclosure in good faith [so the basis of the claim was that he had made a protected disclosure] . 3. As a result of making that protected disclosure, the Respondent initiated and thereafter persisted in disciplinary proceedings against the Claimant which were unjustified. When he requested that the disciplinary proceedings be finalised, his request was ignored. 4. The Claimant has suffered anxiety, distress and injury to feelings as a result of the said disciplinary proceedings [I will not read the next two or three lines]. 5. In view of the above, I believe there has been a breach of my human rights as I have had disciplinary proceedings hanging over me for almost 3 years now.”
[11]The Surrey County Council applied, effectively, to strike out the claim on the basis that it was out of time and it was that that Judge Zuke had to rule on, and it is his ruling that has led to this appeal. The relevant law, so far as the time for bringing a complaint of this nature, namely a complaint of detriment consequential on a protected disclosure, is to be found in s.48 of the Employment Rights Act 1996 , and that says, at subsection (3):
“(3) 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.”
[12]Then, crucially, subsection (4) says this:
“(4) (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; and, [this is the crucial part of the section for the purposes of Judge Zuke's Judgment] in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed 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 failed act if it was to be done.”
[13]Judge Zuke analysed the complaint brought by Mr Croker as being a failure to act by Surrey County Council, following on from whatever was said at the hearing at the Guildford County Court, and he found that that act could reasonably have been expected to have been done within three months of that hearing, therefore by October 2009, and thus this claim, which was not brought until November 2010, would have been well out of time.[14]The Appellant seeks to appeal. As he will no doubt have been told many times, not least by Ms Stanzel, who represents him today, an appeal to this Tribunal lies only on a point of law. As I say, Ms Stanzel represents him today under the auspices of ELAAS, and this is a rule 3(10) hearing to consider whether, in fact, the appeal discloses any arguable point of law. Ms Stanzel has raised a number of points in oral argument and I will deal with them one by one.[15]First of all, in broad terms, it is Mr Croker’s case that time should run from the letter of 4 August 2010, slightly less than three months before proceedings were started, because this letter is the first time that the word “fraud” is mentioned in this connection. I am afraid there are two major problems with that submission. The first is that that is not how the claim is put in the ET1. The complaint is the initiation, and continuation, of the disciplinary proceedings, which it is clear Mr Croker was not happy with. It is not said anywhere in the ET1 that the complaint is a categorisation later, as he understands it, as fraud. So that is not the way has claim has been put.[16]The second problem is that it is clear that the nomenclature, the naming of the proceedings as “fraud”, was not an essential feature of his complaint because, indeed, the grievance which led to the Employment Tribunal case, which as I have said was started in May 2010, either 26 or 27, was started well before the letter of 4 August 2010, and it does not seem to me therefore that it is sustainable to say, as Ms Stanzel did, that the use of the word “fraud” was, in some way, an essential part of the claim which had to be known of before he could contemplate bringing such a claim. That goes to another point that I will come to a little later, to do with whether it was reasonably practicable to bring the claim earlier. So the first point about time running from the letter of 4 August, I am afraid I reject.[17]The next point raised by Ms Stanzel is that the complaint should really be categorised as a complaint about the fact that Surrey County Council were persisting in the disciplinary proceedings. They persisted in them until 4 August 2010 and therefore that act persisting in, did not end until 4 August 2010 so that the claim was within time when it was brought in November 2010.[18]The problem with that submission is that there is no evidence at all that anything was done in relation to these disciplinary proceedings by Surrey County Council between July 2009 and August 2010. In fact, quite the contrary. The Appellant’s whole complaint is that nothing was done and that is why he brought his grievance, and that is why ultimately he brought his claim in the Tribunal. That is the way the judge analysed the case, and it seems to me it is simply not arguable that he made an error of law in so doing.[19]The third point made by Ms Stanzel is that when the judge decided that Surrey County Council should have acted within three months of July 2009, he fell into error. I am afraid it is impossible to challenge that finding that they should have acted within three months, as an error of law. It was simply a finding of fact and one that was open, in my view, to the judge looking at all the facts in the case, and the kind of finding that the tribunals simply have to make, when applying s.48(4). They have to reach a view about the time within which something should have happened, if it did not, and cannot be argued that three months was not a finding that was open to the judge.[20]If three months was wrong then, on the Appellant’s own case, by May 2010 when he himself was bringing a grievance about nothing happening, it surely must be the case that under subsection (4), Surrey County Council ought to have acted. But by May 2010, I am afraid, to November 2010 is way over three months, so that cannot be that the three months picked on by the Tribunal judge, if that was wrong, it would not make any difference.[21]Finally, Ms Stanzel says that it was not practicable for Mr Croker to bring his proceedings earlier because he had not realised that the disciplinary proceedings were categorised as fraud, and therefore he only had all the information in one place as at 4 August 2010. The problems with that, I have already indicated when I was dealing with the question of time running from the letter of 4 August, and the first use of the word “fraud”.[22]There is another objection to such a line of argument, which is that this point about it not being practicable was not taken in front of the Employment Tribunal and the judge expressly recorded that that was the case. It would be far too late, in my view, for it to be taken in front of the Employment Appeal Tribunal. So I am afraid, having listened carefully to Ms Stanzel and analysed her points as I have, no arguable point of law is raised by this appeal and I am afraid the appeal is dismissed.