Ibarz v University Of Sheffield (Part Time Workers) [2015] UKEAT 0018_15_2306
[29]“Parliament considered it necessary to make exceptions to the general rule where an act (or failure) in the short three-month period is not an isolated incident or a discrete act. … A vulnerable employee may, for understandable reasons, put up with less favourable treatment or detriment for a long time before making a complaint to a tribunal. It is not always reasonable to expect an employee to take his employer to a tribunal at the first opportunity. So an act extending over a period may be treated as a single continuing act and the particular act occurring in the three-month period may be treated as the last day on which the continuing act occurred. There are instances in the authorities on discrimination law of a continuing act in the form of the application over a period of a discriminatory rule, practice scheme or policy. Behind the appearance of isolated, discrete acts the reality may be a common or connecting factor, the continuing application of which to the employee subjects him to ongoing or repeated acts of discrimination or detriment. If, for example, an employer victimised an employee for making a protected disclosure by directing the pay office to deduct £10 from his weekly pay from then on, the employee’s right to complain to the tribunal would not be limited to the deductions made from his pay in the three months preceding the presentation of his application. The instruction to deduct would extend over the period during which it was in force and the last deduction in the three months would be treated as the date of the act complained of. ” 24. Mummery LJ then turns to the provision in section 48(3) and he does so at paragraphs 30 and 31 of his Judgment in the following terms:[30]“ 30. The provision in section 48(3) regarding complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.[31]The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within section 48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them. Section 48(3) is designed to cover such a case. There must be some relevant connection between the acts in the three-month period and those outside it. The necessary connections were correctly identified by Judge Reid QC as(a) being part of a “series” and(b) being acts which are “similar” to one another. ” 25. In my judgment, the proper reading of paragraphs 29 to 31 in the Judgment of Mummery LJ was that he was there addressing the distinction between section 48(4), “an act extending over a period”, and section 48(3), “a series of similar acts”, which by reason of some link makes it just and reasonable for them to be characterised as such a series of acts, so that if the latest of that series is in time then it renders the complaint in respect of the earlier acts similarly timeous so as to give the Tribunal jurisdiction. In my judgment, Mummery LJ and the other Judges, who agreed with him, were not saying that, merely because what has been complained of was the repeated application of a discriminatory rule, practice or policy, then the fact that what was complained of could not be said to be “an extended act” or, in the statutory framework of this case, “a term in a contract which was less favourable”, thereby the application of the same policy or practice over a series of discrete fixed-term contracts could not, as a matter of law, be characterised as “a series of similar acts or failures” even if, on the facts, there was such a linkage between the acts complained of as, but for the rule of law, would have made it just and reasonable for them to be treated as part of a series of similar acts so as to give the Tribunal jurisdiction to hear the complaint. Conclusion 26. In my judgment a proper reading of the Employment Tribunal Decision is that it approached this issue on the basis that, because there was a series of separate contracts and no contractual continuity, as a matter of law the application consistently of the same rules, policies and practices across those separate contracts was incapable of being “a series of similar acts” with sufficient linkage so as to make it just and reasonable for them to be treated as in time pursuant to Regulation 7(2)(a). In my judgment, that approach of the Tribunal, based on a misreading of the Court of Appeal decision in Arthur , constituted an error of law. It precluded the Tribunal considering, as a matter of substance, whether, and if so to what extent, on the facts which they found and on the evidence which they heard, the consistent application of the various policies, practices and procedures, which constituted the matters of complaint of the Claimant against the Respondent, albeit across a series of discrete and separate fixed-term contracts, nonetheless, applying the guidance to be found in Arthur , particularly at paragraphs 30 and 31, did amount to a series of similar acts or failures so as to enable the complaints in respect of the earlier fixed-term contracts to be regarded as brought in time to enable them to be considered by the Tribunal, in addition to the complaints made in respect of the last of the fixed-term contracts, running from February to May 2013. 27. It therefore follows that, by reason of the error of the law, the decision of the Tribunal to rule as out of time, all of the complaints in respect of any of the fixed-term contracts prior to the last one, cannot be allowed to stand. I will therefore quash that part of determination of the Employment Tribunal. Disposal 28. Mrs Fraser Butlin has urged on me that this is one of these exceptional cases where the findings of fact are so comprehensive and so clear and the arguments are so on her side that the decision to which any Tribunal should come is an obvious one, namely that all of these complaints in respect of each of the previous fixed-term contracts do fall within Regulation 7(2)(a) so as to have been brought in time and that I should therefore substitute my Judgment on this issue for the Decision of the Employment Tribunal which I have just quashed by reason of its error of law. 29. Mr Williams has indicated that he opposes such an approach. If, as I have done, I have concluded that the Tribunal erred in law in its approach, and by doing so failed to apply itself to the test under 7(2)(a) as applied to the evidence and its findings of fact, he suggests that the only appropriate course is that of remitting the case to the Employment Tribunal for it to reconsider the matter in a legally correct way and to come to its decision on the matter upon which it has yet to consider. 30. In my judgment, Mr Williams is correct in his submission as to the appropriate course. The matter will be remitted to the Employment Tribunal for it to take its decision afresh on a proper legal basis. It seems to me that it is highly unlikely that there will be any need for any further evidence, but I anticipate that it may be that the Tribunal would be assisted by further legal submissions. Whether or not that is to be at an oral hearing is a matter of case management which I would leave to the Employment Tribunal to determine. Therefore this appeal succeeds. Costs 31. I am indebted both to Mrs Fraser Butlin and to Mr Williams for, in her case, her written and oral submissions and, in Mr Williams’s case, his oral submissions on the issue of costs. The successful Appellant applies under Employment Appeal Tribunal Rules , Rule 34A(2A), for a costs order against the Respondent, albeit limited under that sub-rule to an amount no greater than “any fee paid by the Appellant under a notice issued by the Lord Chancellor”. In this case that comprises two elements, an issuing fee and a hearing fee. 32. Mr Williams argues that I should not exercise my discretion to award both or either of those fees on the basis that, although he argued and lost the appeal, there was: the possibility of applying for a review; and the original grounds of appeal were somewhat diffuse and did not necessarily focus on the point which has been successfully argued by the Appellant. 33. In my judgment, there is nothing in the review point. As I have indicated in my Judgment there was an error of law which required this Tribunal to consider it and to reach the decision which I have just reached and to quash the earlier erroneous decision. 34. The other aspect is, in my judgment, inapposite where what is at stake are the issuing fees and the hearing fee. This case is not out of the ordinary, particularly in this Employment Appeal Tribunal, where the general expectation is that the successful Appellant shall be awarded the costs limited, as they are, by Rule 34A(2A). 35. My attention has been drawn to a recent decision of this Tribunal in the case of Goldwater and Others v Sellafield UKEAT/0178/14/DXA, on the papers without the benefit of full legal argument. That was to the following effect, that the costs which can be awarded under Rule 34A(2A), being limited to an amount “not greater than any fee paid by the Appellant under a notice issued by the Lord Chancellor”, precludes an order for costs which includes a fee paid by a third party such as a trade union on behalf of the Appellant or an insurance company, where the appeal is funded pursuant to an insurance policy. 36. In my judgment, the decision in Goldwater is wrong. It does not read happily with the other provisions in the EAT Rules , as amended, to deal with the question of payment of fees, where the phrase “payable by an Appellant” and “the Appellant has not paid the fee” can only make any sense as a matter of practicalities if the wording of the Rules added to “the Appellant” the words “or on his behalf”. 37. I have been referred to Mardner v Gardner and Others UKEAT/0348/13/DA. It was pointed out, at paragraph 35 in the Judgment of HHJ Eady QC, relying on a series of authorities identified in paragraph 17, that it is contrary to public policy to permit a Respondent to avoid costs consequences, in a case where it had engaged in unreasonable conduct, by relying on a similar provision where, the Claimant, seeking costs, had not paid the costs incurred but had, prudently, entered into a policy of insurance so that a costs award would be paid to the insurance company. 38. There was no reference in Goldwater to that earlier, apposite, decision and no fuller consideration of the Rules . In particular, there was no reference to paragraphs 13 and 14 of The Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 and Rule 17A(1)(b) of the Employment Appeal Tribunal Rules 1993 , which formed the basis of the submissions of Mrs Fraser Butlin. In my judgment, I am in a much better position, having heard full legal argument and having been referred both to the other provisions within the Rules as amended and the other legal authority, to reach a fully informed decision. 39. I agree with Mrs Fraser Butlin, Mr Williams not seeking to argue the contrary, that the power given to this Tribunal in 34A(2A) includes the power to require the Respondent to pay fees payable in respect of the issuing of the appeal and the hearing fee, even where that fee has not been paid personally by the Appellant but, in this case, by a union acting on his behalf. Accordingly I will order that the Respondent do pay both the issuing fee and the hearing fee to the Appellant.