Arthur v London Eastern Railway Ltd

This is an appeal from the order of the Employment Appeal Tribunal dated 13 June 2005. Sedley LJ granted permission to appeal on 17 March 2006.

The subject is time limits and the dispute is about their interpretation and their application to a complaint brought by an employee, Mr John Arthur, under the Public Interest Disclosure provisions (protection for “whistle blowers”) in Part IVA of the Employment Rights Act 1996 (the 1996 Act) against his employer, London Eastern Railway (T/A One Stansted Express) for subjecting him to detriment on the ground that he made protected disclosures.

The limitation period is 3 months from the date of the act (or failure) complained of in the originating application to the employment tribunal. There are, however, circumstances in which acts committed outside the 3 month period are treated as being in time, if the last act (or failure) occurred in the 3 month period.

The employment tribunal has a limited discretion for the tribunal to extend the 3 month period, but it is conceded that, on the facts of this case, there are no grounds for extending time.

At a pre-hearing review on 26 January 2005 the chairman of the employment tribunal, sitting alone, heard legal submissions. Without hearing any evidence, he ruled that most of the acts (and failures), on which Mr John Arthur based his complaint of detriment, were out of time. The majority of the matters listed by him in his application and in the further and better particulars had occurred more than 3 months before the presentation of his originating application on 13 July 2004 (i.e. before 14 April 2004). The rest of the acts (and failures) included in the application occurred within the 3 month period.

The Employment Appeal Tribunal dismissed Mr Arthur’s appeal at a preliminary hearing, holding that there was no arguable error of law in the tribunal’s decision.

Mr Arthur was employed as an on-train cabin crew member from January 2000. He was away on continuous sick leave from September 2003 suffering from clinically diagnosed depression. The court was informed that Mr Arthur has brought proceedings for disability discrimination. More proceedings may follow the recent decision of his employer to dismiss him.

Mr Arthur’s claim is that he has suffered continuous detriment on the ground of protected public interest disclosures made by him to the police and to his employer. The disclosures concerned assaults on him on 31 March, 30 May and 4 September 2001. He drew attention to insufficient on-train staffing levels and to problems with reporting and exposure to risk of violence on late night and early morning trains. He alleged that, after he made the disclosures, he was regarded as a “trouble maker” and a “marked man” and was subjected to continuous detriment by his employer. According to him the manager (Mr Stuart Towler) said “You could lose your job over something like this.”

The succession of alleged acts (and failures) since September 2001 involve about 12 different people. They include failing to provide him with a taxi and a working mobile phone; unreasonably refusing him leave and delaying making him a payment in lieu of leave; failing to provide him with support during the prosecution of the case for the 4 September 2001 assault; delay in the individual grievance procedure, not finding in his favour and cancelling a grievance hearing; putting him in fear of immediate deportation; failing to promote him to realistic grades and keeping inappropriate documents on his personal file; making deductions from his wages, repeated misdirection of letters, not responding to medical advice and misleading the occupational health service.

In its Notice of Appearance the employer denied practically everything alleged by Mr Arthur and pleaded that all but one of the detriments relied on were out of time.

The question of law under section 48 (3) of the 1996 Act is whether the acts (and failures), the last of which occurred within the 3 month period, were “part of a series of similar acts or failures.” The chairman of the employment tribunal held that they were not. He only allowed the claim to proceed in respect of the acts that were in time. Directions were given as to how those claims should proceed.

Under section 47B of the 1996 Act

“(1)

A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B: see section 48(1A).

Section 48 (3) of the 1996 Act provides that an employment tribunal shall not consider a complaint under section 48 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.”

Section 48(4) provides that-

“For the purposes of subsection (3)-

(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 a done when it was decided on;

and, 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.”

The employee must prove that the act in question was in fact done or that there was a deliberate failure to act and that he suffered detriment, but it is for the employer to show the ground on which any act, or deliberate failure to act, was done: section 48(2)

Section 49 provides that, where the tribunal finds a complaint under section 48 well-founded, the tribunal may make an award of compensation to be paid by the employer in respect of the act or failure to act to which the complaint relates. The amount of compensation shall be such as the tribunal considers just and equitable having regard to the infringement to which the complaint relates and any loss which is attributable to the act, or failure to act, which infringed the complainant’s right: section 48 (2).

Compensation would not, of course, be payable in respect of time barred acts or failures to act, since they would not be infringements of the relevant right not to be subjected to detriment. This would not affect the right of a complainant to give evidence of time barred acts or failure to act if they were relevant to the issue whether the acts in time were in fact committed and the issue whether they were done “on the ground that” the complainant had made a protected disclosure.

The employment tribunal heard legal submissions from Miss Seymour for the employer. Miss Seymour argued that section 48(3) was limited to acts or failures which show “a significant degree of linkage between events.” The only acts or events that should be linked were those which are “alike in character and which can properly be said to form a series.”

The tribunal also heard legal submissions from Mr Khan, who was then acting for Mr Arthur. He argued for a wider interpretation. Section 48(3) included acts which “share a common motive” if not necessarily a common type of character. A series of acts could, for example, form part of a campaign organised with a common motive rather than merely acts that are serial in time.

The chairman found for the employer. He said-

“8.

Having considered the competing submissions I am persuaded that the expression “a series of similar acts or failures” means a significant degree of linkage between events as suggested by Ms Seymour. Had I adopted the wide interpretation suggested by Mr Khan I would have had to take evidence from all those persons named in the Claimant’s Further and Better Particulars to decide whether there was such a link and whether there was a unifying motive for the various detriments complained of by Mr Arthur. Such an exercise would defeat the object of the Pre-Hearing Review.”

He did not, however, agree with the employer that everything alleged to have taken place before 14 April 2004 was necessarily excluded. He held that the following matters were in time: unreasonable delay of payment in lieu of leave from January 2002 to May 2004; the manner in which the internal grievance procedures were handled on 13 September 2002 linked with complaints made about the Grievance Procedure in January 2004 and the Grievance Procedure on 14 April 2004, though not the matters raised in them, which were out of time; and the failure to respond to medical advice from 8 April to 23 August 2004. The chairman directed that the claim would proceed on the limited ground of detriment which he had ruled in time and gave directions as to the merits hearing. It has not yet taken place, as Mr Arthur appealed against the chairman’s ruling. If it proceeds it is estimated to last 5 days.

At the preliminary hearing in the Employment Appeal Tribunal Mr Khan repeated his principal submissions that acts (and failures) which were linked by motive, though by nothing else, could be part of a series of similar acts or failures.

HHJ JR Reid QC said-

“11.

What then is the meaning of “a series of similar acts or failures”? “Series” necessarily connotes some factual linkage between events. It is not simply some concatenation of similar acts or failures. The whole point about that particular phrase is that it enables an employee to bring proceedings within 3 months of the last of the series, provided there are similar acts or failures. That in itself necessarily connotes a temporal element to it; one event following on another.

12.

Then we have the words “similar acts or failures” and here it seems to me that some meaning must be given to the word “similar.” It is not enough that there should have been a series of acts or failures, if Parliament had meant to say “part of a series of acts or failures” it would have said so. Thus, it seems to me, that the learned Chairman was correct in saying that it is necessary that there should be a significant degree of linkage between the events.”

He concluded that, taking Mr Arthur’s case at its highest, as he was bound to do, it was apparent that there was no evidence and no basis upon which Mr Arthur could properly assert that there was any such linkage, let alone any joining together of a large number of disparate people in a campaign against him: see paragraphs 13 and 15 of the judgment. As he had rejected the wider construction advanced on behalf of Mr Arthur, there was no series of similar acts or failures the last of which occurred within the 3 months before the application was presented.

The construction of section 48 (3) turns on the natural and ordinary meaning of the words, having regard to the context of the time limit provisions, their evident aim and the overall purpose of Part IVA of the 1996 Act.

The purpose of Part IVA is to protect employees from unfair treatment for reasonably raising in a responsible way genuine concerns about wrongdoing in the workplace: see ALM Medical Services Ltd v. Bladon [2002] ICR 1446 at paragraph 2.

The aim of section 48(3) is to exclude from the jurisdiction of tribunals complaints that are not made timeously. Employment tribunals are designed to despatch workplace disputes in a quick and relatively inexpensive and informal way. The limitation period is short. In general, a complaint to a tribunal must be made within 3 months of the act complained of. This applies to complaints under the 1996 Act and under the Discrimination Acts.

Parliament considered it necessary to make exceptions to the general rule where an act (or failure) in the short 3 month period is not an isolated incident or a discrete act. Unlike a dismissal, which occurs at a specific moment of time, discrimination or other forms of detrimental treatment can spread over a period, sometimes a long period. 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 3 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 3 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 3 months would be treated as the date of the act complained of.

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 3 month period. There must be an act (or failure) within the 3 month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the 3 month 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.

The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the 3 month period and some outside it. The acts occurring in the 3 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 3 month period and those outside it. The necessary connections were correctly identified by HHJ Reid as (a) being part of a “series” and (b) being acts which are “similar” to one another.

The provisions for acts extending over a period and for acts which are part of a series of similar acts are important to both sides because they affect the jurisdiction of the tribunal and they could also affect the amount of compensation that can be awarded.

The question is whether the tribunal erred in law in determining the important time limit point in the way that it did, solely on the basis of legal argument and without hearing any evidence or making any findings of fact. In my judgment, it did. The difficulty with the decisions of the tribunals below is that, in my view, it is not a particularly enlightening exercise to ask whether, as a matter of construction, “the motive” for the acts is a relevant link between acts to make them part of a series or to make them similar acts. Nor does it advance matters much to ask in the abstract what makes acts part of a series or what makes one act similar to another act.

In my judgment, it is preferable to find the facts before attempting to apply the law. I do not think that this is a strike out situation in which assumptions have to be made as to the truth of the facts in order to decide whether there is a cause of action. It is assumed at this stage that the acts (and failures) alleged occurred and that the complainant may be able to establish a cause of action in respect of the acts within the 3 month period. The question is whether he can bring in pre-14 April 2004 acts as part of the claim.

In order to determine whether the acts are part of a series some evidence is needed to determine what link, if any, there is between the acts in the 3 month period and the acts outside the 3 month period. We know that they are alleged to have been committed against Mr Arthur. That by itself would hardly make them part of a series or similar. It is necessary to look at all the circumstances surrounding the acts. Were they all committed by fellow employees? If not, what connection, if any, was there between the alleged perpetrators? Were their actions organised or concerted in some way? It would also be relevant to inquire why they did what is alleged. I do not find “motive” a helpful departure from the legislative language according to which the determining factor is whether the act was done “on the ground” that the employee had made a protected disclosure. Depending on the facts I would not rule out the possibility of a series of apparently disparate acts being shown to be part of a series or to be similar to one another in a relevant way by reason of them all being on the ground of a protected disclosure.

Ms Seymour objected that, if this was the case, there was no point in having a pre-hearing review to determine time-limit issues in a case such as this. The matter would always have to go to a full hearing. Two points can be made on this submission. First, it is possible to direct a preliminary hearing with evidence relevant to the time limit point. Secondly, I agree that there would be no real point in having a preliminary hearing with evidence, if it was not going to save time and costs. That will often be the case in this sort of situation. Even if it is decided at a pre-hearing review or other preliminary hearing that there is no continuing act or series of similar acts, that will not prevent the complainant from relying evidentially on the pre-limitation period acts to prove the acts (or failures) which establish liability. It will in many cases be better to hear all the evidence and then decide the case in the round, including limitation questions, on the basis of all the evidence: see, for example, Hendricks v. Metropolitan Police Commisioner [2003] 1 All ER 654 (particularly at paragraphs 48 and 49) regarding the approach to multiple acts alleged to extend over a period.

For the above reasons I would allow the appeal, set aside the order of the employment tribunal and remit the matter to the employment tribunal to proceed to a full merits hearing on all the acts (and failures) particularised by Mr Arthur, whether occurring before or after 14 April 2004, and then deciding whether, as a fact, they were part of a series of similar acts (or failures), the last of which occurred after 14 April 2004.

It would be sensible for those representing Mr Arthur to re-consider the position of their client with a view to concentrating on the most important acts (and failures) and saving unnecessary time and costs on peripheral matters.

I agree that this appeal should be allowed for the reasons given by Lord Justice Mummery. There remains, however, an area of debate about the meaning, or rather the limits of meaning, of the phrase “a series of similar acts or failures”.

Ms Seymour’s initial insistence that, to come within the statutory formula, acts or failures must be physically alike drove her to this position: that if the suspected whistleblower had repeatedly found that salt had been put in his tea, his time for bringing proceedings would be three months from the most recent occasion; but that if he had first had salt put in his tea, then had chewing gum left on his chair, then had his bicycle tyres deflated, it would not. One has only to imagine the ministerial answer to a parliamentary question on the point from that under-used aid to construction, the industrious backbencher, to appreciate that this is unlikely to have been Parliament’s intention.

I see the force of Lord Justice Lloyd’s reasoning about the redundancy of the requirement of similarity if it extends to the grounds on which hostile acts were done as distinct from the acts themselves. But on this issue I agree with Lord Justice Mummery, because the alternative is a construction which demands uniformity in a situation which, as the legislature will have known, is typically multiform. In the second example I have given, which is a classic tale of harassment at work, the only link may be the inferred motive of the aggressors. The class of a case in which, as Ms Seymour accepted, disparate acts are to be treated as similar because they were all instigated by one person is evidentially a rare one. While I agree with Lord Justice Mummery that, on what is in substance a strike-out application, the search for a shared motive may be entirely unhelpful, when the evidence has been heard and considered it is possible that a series of apparently unconnected acts will all be found – using the statutory language – to have been done to the claimant on the ground that he had made a protected disclosure. The difference between such a finding and a finding of detrimental acts linked by a common motive may be no more than semantic. In either such case I would consider it within the statutory purpose to treat the history as constituting a series of similar acts.

The asymmetry of language to which Lord Justice Lloyd draws attention can be lived with in this context; the unreality of outcome if the statute is corrected for it, in my respectful view, cannot.

I agree with Mummery LJ that the appeal should be allowed. It is not helpful or sensible, in the present case, to try to decide on a preliminary basis without evidence whether a number of acts, or failures, do or do not constitute a series of similar acts, so that the complainant can claim for detriment suffered by him as a result of those which happened more than 3 months before the issue of his proceedings. This is the equivalent of a striking-out application. It seems to me that this is rarely likely to be a sensible approach in relation to a discrimination claim.

In her very able submissions, Ms Seymour made the point that it cannot be enough for the complainant to say that the acts in question are all similar in that they were all done on the relevant ground. Any act which can be relied on under section 47B of the Employment Rights Act 1996 must, by definition, have been done “on the ground that” the complainant had made a protected disclosure. More generally, all the various complaints which may be presented to an employment tribunal under section 48 are defined as involving an allegation that the employer has done an act “on the ground that” something set out in the particular section has happened (or, in section 47C, that the act has been done “for a prescribed reason”). That being so, if it were sufficient similarity to assert that all the acts had been done on the particular ground, the use of the word “similar” would add nothing, and the section could simply have said “a series of acts”. All acts would be in time so long as one was and all could be said to be part of a series.

Mummery LJ would not rule out the ground on which the act is done as the linking feature of similarity: see his paragraph [35]. I respectfully disagree on this. It seems to me that Ms Seymour’s submissions on this, mentioned in the last paragraph, are correct. However, it is not necessary to decide this in order to dispose of the appeal. It seems to me inappropriate, in any event, to deal with the question whether the acts were similar by way of a strike-out, or a preliminary hearing without evidence, because it is not possible to tell, without regard to the relevant evidence, whether two or more of the acts relied on are linked by sufficient similarities so as to be properly regarded as part of a “series of similar acts”. In any but the most exceptional case it must be sensible to consider the evidence as to each act relied on before deciding (a) whether they are part of a series at all and (b) whether they are sufficiently linked factually to be “similar” acts.

Subject to the one reservation expressed above, I agree with the judgment of Mummery LJ, and in particular that the appeal should be allowed and the order made which he indicates in his paragraph [37].