Lyfar v Brighton and Sussex University Hospitals Trust

Dr Vivienne Lyfar appeals against a decision of the Employment Appeal Tribunal (“EAT”), HHJ McMullen QC, sitting alone, dismissing her appeal from the decision of an Employment Tribunal (“ET”) Regional Chairman, Mr R Peters. The decision of Mr Peters was made at a Pre-Hearing Review ordered in accordance with the Employment Tribunal Regulations 2004, regulations 10, 14 and 18. The Rules give wide powers of case management and provide for the determination of preliminary points and striking out.

The appellant gave evidence at the Review and submitted documents, including what was treated as a witness statement prepared by her union representative. The respondent called no evidence.

The appeal concerns section 68 of the Race Relations Act 1976 (the “Act”) which prescribes a limitation period for complaints. Section 68 provides:

“(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;

...

(6)

A court or tribunal may nevertheless consider any such complaint ... 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

...

(b)

any act extending over a period shall be treated as done at the end of that period;

...”

The three month period began on 25 November 2004. The seventeen complaints covered the period summer 2004 to a date after November 25. The appeal is particularly concerned with the words in sub-section 7(b) “any act extending over a period” and the application of sub-section (6). It is the appellant’s case that the conduct about which she was complaining constituted “an act extending over a period” which ended after November 25. Alternatively she submitted that under sub-section (6) it was just and equitable to consider her complaints. Mr Peters allowed only five of the seventeen complaints to be heard dismissing the others as being out of time and deciding that it was not just and equitable to hear them.

Separately, another Employment Tribunal Chairman decided that four of the remaining five grounds left by Mr Peters should be dismissed because the Claimant did not activate the grievance procedure in accordance with the 2002 Act and Regulations prior to presenting the claim. Her appeal against that was unsuccessful. The Appellant, subject to the outcome of this appeal, is left with one of her 17 complaints to be tried at an Employment Tribunal. The remaining ground is: “The failure by the Respondent to deal with the Claimant’s grievance in good time or at all.”

In the preamble to her claim the appellant wrote:

“My claim of discrimination relates to the way in which BSUH Trust conducted an investigation into the alleged allegations of bullying and harassment of ... AR against me as the supervisor of her BSc project”.”

I take a brief statement of the facts from the judgment of HHJ McMullen:

“The facts can only be tentatively stated because there has, of course, been no trial. The Respondent is an NHS Trust on the south coast of England. The Claimant has (since 1985) been, and still is, employed as a Principal Clinical Bio-Chemist at a salary of over £41,000 a year. She is black Afro-Caribbean. The Tribunal found as follows:

‘2. An internal complaint was raised against the Claimant by another member of staff (AR). The complaint was that the Claimant had bullied and harassed her.

3.

That complaint was the subject of an internal investigation, which came to the view that there was sufficient to warrant disciplinary action against the Claimant.

4.

As a consequence, the Claimant attended a disciplinary hearing on 11 October 2004. The outcome of that hearing was that the disciplinary charges against the Claimant were dismissed.

5.

Following that, the Respondent's General Manager, Judy Piper, endeavoured to arrange a meeting with the Claimant to discuss issues arising as a consequence of the disciplinary action. No such meeting took place.

6.

On 9 November 2004, the Claimant wrote to the Respondent's Director of Personnel registering a grievance as to the conduct of the disciplinary process.

7.

The Claimant was informed of the outcome of that grievance on 20 January 2005.

8.

On 24 February 2005, the Tribunal received, by facsimile transmission from solicitors acting on the Claimant's behalf, a Tribunal Claim Form dated 27 January 2005 making a series of complaints of racial discrimination’.”

The ET categorised the complaints into four groups. In the words of HHJ McMullen:

“The claims span four periods. (1) An investigation which found that there was a case for the Claimant to answer in August 2004. (2) The hearing of disciplinary charges on 11 October; they were dismissed. (3) What Judy Piper did after the disciplinary hearing. (4) The handling of the Claimant’s grievance submitted on 9 November 2004. ”

The ET said this about the seventeen complaints:

“15.

The first category was of acts of less favourable treatment all relating to the actions/omissions of the investigation team. Apart from the first of those allegations, they were of matters occurring over a period ending in August 2004 whenthe investigation team produced its report. Those complaints are:

First alleged act of less favourable treatment

The Respondent sending the letter of 17 May 2004 (inviting the Claimant to address the investigation team) to the wrong address, thereby denying the Claimant the opportunity to provide the investigation team with her version of events before it decided that she had a case to answer.

Second alleged act of less favourable treatment

The Respondent's failure to make any or any reasonable efforts to ensure that the Claimant had an opportunity to address the investigation team before it decided whether she had a case to answer.

Third alleged act of less favourable treatment

The consideration by the investigation team of the Claimant's activities with the Black and Ethnic Minority Network.

Fourth alleged act of less favourable treatment

The acceptance by the investigation team of the uncorroborated evidence of AR despite the absence of any or any reasonable grounds for doing so.

Fifth alleged act of less favourable treatment

Pursuit by the investigation team of lines of enquiry during its interviews with potential witnesses that were irrelevant to AR's complaint to the intent of unearthing matters which would support the investigation team's belief that the Claimant had a case to answer.

Sixth alleged act of less favourable treatment

The deliberate or negligent misinterpretationby the investigation team of evidence adduced by witnesses.

Seventh alleged act of less favourable treatment

Repeated unreasonable delays by the investigation team to respond to the Claimant's correspondence throughout the period of the investigation.

Eighth alleged act of less favourable treatment

The failure by the Respondent to pay any or any adequate attention to its own policy in respect of complaints against staff on 2 and 14 July 2004 and failure to complete the investigation timely.

Ninth alleged act of less favourable treatment

The conduct of the investigation team's informal proceedings in a formalmanner.

Tenth alleged act of less favourable treatment

The production of a report by the investigation team in August 2004 thatfound that the Claimant had a case to answer.

16.

The second category of acts of less favourable treatment related to the disciplinary hearing. Those alleged acts tookplace on or by 11 October 2004.

Eleventh alleged act of less favourable treatment

The failure by the Respondent to provide the Claimant with copies of the meeting notes collated by the investigation team causing a detriment impact on the Claimant's ability to defend herself against AR's complaints.

Twelfth alleged act of less favourable treatment

The failure by the Respondent to require the Claimant's deputy to attend the disciplinary hearing on 11 October 2004, despite the fact that the investigation team knew that the Claimant's deputy would provide testimony that would indicate that AR's complaints against the Claimant were unfounded.

17.

The third category of acts of less favourable treatment related to the actions of Judy Piper. The Claimant asserts that such events happened on the dates in October, November and December as set out in the thirteenth alleged act of less favourable treatment, oris continuing discrimination.The Claimant put the acts of discrimination in the following terms:

Thirteenth alleged act of less favourable treatment.

The intimidation of the Claimant by Judy Piper after the disciplinary hearing had dismissed the charge against the Claimant in endeavouring to arrange meetings in October, November and December.

Fourteenth alleged act of less favourable treatment

The failure by Judy Piper to inform the Claimant's line manager or the Pathology Manager of the outcome of the disciplinary hearing.

Fifteenth alleged act of less favourable treatment

The failure by Judy Piper to discuss the hearing or any team building strategies with the Claimant's line manager or the Pathology Manager.

18.

The final category of acts of less favourable treatment concerns the Claimant'sgrievance which she submitted by her letter of 9 November 2004:

Sixteenth alleged act of less favourable treatment

The failure by the Respondent to deal with the Claimant's grievance in goodtime or at all.

Seventeenth alleged act of less favourable treatment

The failure by the Respondent to provide any or any adequate explanation for the failings of the investigation team in finding that the Claimant had a case to answer.”

I turn to the first issue: the test to be applied by the ET. In Hendricksv. Metropolitan Police Commisioner [2002] EWCA Civ 1686 Mummery LJ (with whom the other members of the Court agreed) set out the test to be applied at a preliminary hearing [now a Pre-Trial Review] when the Claimant, otherwise out of time, seeks to establish that a complaint is part of an act extending over a period. The claimant must show a prima facie case. Miss Monaghan submitted that that the ET must ask itself whether the complaints were capable of being part of an act extending over a period. I, for my part, see no meaningful difference between this test and the prima facie test.

To resolve that issue it may be advisable for oral evidence to be called, see e.g. Arthur v.London Eastern Railway Limited (trading as One Stansted Express) [2006] EWCA Civ 1358. In the instant case the claimant who was represented by Mr Afeeva called the appellant albeit not on this issue.

I agree with what HHJ McMullen said on this issue, subject to one proviso:

“... I have fully in mind Lord Steyn’s imprecation in Anyanwu [reported at [2001] UKHL 14; [2001] 2 All ER 353; [2001] 1 WLR 638]] that race discrimination claims, when properly made, should be adjudicated. But I also bear in mind the clear jurisdictional requirements of the regulations and when a point is taken properly by a respondent as to time, a Pre-Hearing Review by the Chairman alone is usually the appropriate way of dealing with it. In any event, in this case, there can be no principled objection nor an objection on grounds of law that this preliminary point was taken at the Pre-Hearing Review.”

The proviso relates solely to the use of the words “usually the appropriate way”. Whilst accepting from such an experienced judge that in practice the issue is usually decided at a Pre-Hearing Review, that “fact” does not, in my view, help a chairman of an ET to decide whether in any particular case the issue should be decided at this stage or later.

What then do the words “an act extending over a period” mean?

Mr Afeeva submitted to the ET that the meaning given to those words in Hendricksis the correct meaning and not that given in the later case of Bexley Community Centre Trading as Leisure Link) v. Robertson [2003] EWCA Civ 576.

Mr Sheldon agreed before us that the meaning given in Hendricks is the correct one. I do not therefore need to discuss Robertson other than to say Robertsoncould be read as limiting “an act extending over a period” to such matters as “policy, rule, practice, scheme or regime”.

HHJ McMullen said, correctly in my view:

“22.

I regard the law as set out in Hendricks as being the applicable law here and, in particular, the judgment of Mummery LJ (with whom May and Judge LJJ agreed) when he said as follows:

‘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 a 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.

...

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’.

What Mummery LJ did was to expand the cases where discrimination might be found beyond those where a policy could be identified. The extension is most useful where the acts said to be continuing are different in nature, but they constitute a continuing state of affairs in which discrimination occurs. A policy is a strong example of a state of affairs, but the state can exist without it. Just as a policy can be abrogated, so a state of affairs can change or come to an end.” (Underlining added)

Miss Monaghan submits that the Chairman wrongly applied Robertson rather than Hendricks. If he had applied Hendricks, he would not have reached the conclusion which he did.

Did the ET apply Robertson rather than Hendricks? This is what the ET said:

“29.

In Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 the Court of Appeal reviewed the authorities and stated:

‘The focus should be on the substance of the complaints ... was there an ongoing situation or a continuing state of affairs in which officers...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’.

30.

In Robertson v Bexley Community Centre [2003] IRLR 434, the Court of Appeal approved the approach set out in Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, in which it was held that to establish a continuing act, it must be shown that the employer had a practice, policy rule or regime governing the act said to constitute it.

35.

The question then is whether those matters were acts extending over a period of time terminating on or after 25 November 2004. Mr Afeeva argues that those events are part and parcel of the subsequent events to constitute a whole.

36.

I am satisfied that the first category of acts of less favourable treatment(paragraph 15 above) constitute by themselves a continuing act, but one that came to an end in August 2004.

37.

I am also satisfied that the second category of less favourable treatment (paragraph 16 above) also constitutes a continuing act. I am prepared to find that those all constituted part of the disciplinary process and to that extent constituted part of the disciplinary process and to that extent constituted an ongoing situation. However, that situation ended on 11 October 2004 when the disciplinary charges against the Claimant were dismissed.

38.

I am also satisfied that, in themselves, the third category (paragraph 17 above) and final category (paragraph 18 above) were continuing acts and in each case extending over a period coming to an end on or after 25 November 2004.

39.

The difficulty I have is in finding that the first and second categories form part of a whole with the third and/or final categories. The disciplinary proceedings terminated on 11 October 2004 – there was not an ongoing situation thereafter and no policy, practice or regime under which the subsequent events can be said to be part of the same act as the prior events.

40.

In those circumstances, I find that the first to the twelfth alleged acts of less favourable treatment are out of time.

The highpoint of Miss Monaghan’s arguments is perhaps to be found in paragraphs 29 and 30 of the Chairman’s reasons where both authorities are set out without a preference being expressed for one rather than another.

I agree with what HHJ McMullen said on this point:

“28.

The correct legal test was applied. The Chairman cites the language of Hendricks three times. First, he cites the case itself including the passage relied on by Mr Afeeva. Secondly, in his treatment in paragraph 37 of category 2, he uses the phrase “ongoing situation.” Thirdly, it appears again in what both Counsel argue is the critical paragraph [39] and with which I agree.

29.

That is a plain finding consistent with the language of Hendricks. It also is consistent with the language of Robertson, for there the words “no policy, practice or regime” also appear. I reject the contention that, as Mr Afeeva put it, Robertson was on the Chairman’s agenda and we do not know how it affected him. It was ‘on his agenda’ because it was submitted in writing to him that Robertson was not the correct test and on the other hand, on behalf of the Respondent, that it was. In either case, Owusu [1995] IRLR 574 was cited, which is the language of practice, procedure or regime. I am satisfied that a firm finding of fact which satisfies the test in Hendricks was made by the Chairman in paragraph 39 and since this is the critical section of his judgment, there can be no ground for contending that he made an error of law in so doing.”

Additionally, as it seems to me, the Chairman’s conclusion (to which I refer later) that the complaints within the first, second and third categories were each acts extending over a period covered by that category, demonstrates that he was properly applying Hendricks.

Having applied, in my view, the right test, Miss Monaghan must show that no reasonable tribunal could have reached the conclusion on the facts that Mr Peters reached. Indeed on the basis of the much cited paragraph 93 of Yeboah v. Crofton [2002] EWCA Civ 794 she must show an “overwhelming case” that “the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.”

Miss Monaghan attacks the Chairman’s division into four categories. I do not accept that argument. As HHJ McMullen said:

“The written submission made by Mr Afeeva, his Skeleton Argument and the Notice of Appeal all show that as a matter of syntax and of substance the claims are correctly divided into four logical categories based on date.”

Miss Monaghan relies particularly on two arguments to support her case on this point. First, the complaints all related to the management response to the allegation of bullying made by AR. Secondly, that management response was reflected in the behaviour of Debbie Pook who conducted the investigation and presented the case at the disciplinary hearing and of Judy Piper who chaired the hearing and who, the appellant alleges, was responsible for the thirteenth, fourteenth and fifteenth allegations of less favourable treatment.

Mr Sheldon points particularly to the last sentence of paragraph 37 of the ET’s reasons for judgment:

“However, that situation ended on 11 October 2004 when the disciplinary charges against the Claimant were dismissed.”

Thereafter, so he submits, the allegation of bullying had been dealt with and dismissed. The other complaints relate to Judy Piper’s alleged behaviour thereafter.

In my view the Chairman was entitled to reach the conclusion which he did, particularly in the light of the fact that the disciplinary charges were dismissed. There is no criticism of the conduct of Judy Piper during the hearing. It is Debbie Pook’s conduct both before and during the hearing which is criticised.

I agree with HHJ McMullen:

“It was open to the Tribunal to consider that one leads into another, but that was not the finding that the Tribunal made here. Such a finding is one of fact.”

Miss Monaghan has not met the burden of establishing that the Chairman’s decision on this point was perverse.

I turn therefore to the Chairman’s conclusion that it was not just and equitable to consider the complaints.

The Chairman said:

“41

Turning to the question as to whether it would be just and equitable to consider those complaints:

41.1

I noted that the Claimant will be able to adduce evidence of the out of time complaints whether or not I exercise my discretion to allow those complaints to be considered.

41.2

I considered the nature of the complaints themselves.

41.3

I noted the lack of any explanation for the non-presentation within time.

41.4

I also noted that the Respondent does accept that there were some procedural shortcomings in the disciplinary process.

42.

Weighing these and all the other circumstances and considering the balance of prejudice, I conclude that it would not be just and equitable for the out of time complaints to be considered.

43.

Consequently, the Tribunal does not have jurisdiction to consider the first to the twelfth complaints of alleged less favourable treatment on racial grounds and those complaints are dismissed.”

HHJ McMullen said:

“32.

I then turn to the point about discretion. What is unusual about this case, in my experience, is that there has been no explanation for the failure to present the claim form within the time. All the cases with which I am familiar invoke some form of excuse, but not here; and that obviously was a matter which weighed upon the Chairman when he declined to exercise his discretion. He also noted, as is the case, that all of the 12 allegations which he ruled out are capable of emerging as evidential issues pursuant to the judgment of the EAT, Mummery J in Qureshi v Victoria University of Manchester [2001] ICR 863, cited with approval in Anya v University of Oxford & Another [2001] IRLR 377 CA.

33.

The Chairman indicated that he considered the nature of each of the complaints including the fact that the Respondent acknowledged shortcomings in its process. Shortcomings in a disciplinary process are not necessarily acts of discrimination. The Chairman considered the balance of prejudice and I accept the submission made on behalf of the Respondent, which has not been answered by Mr Afeeva, that the balance of prejudice means weighing the effect of, on the one hand, stopping the case and on the other continuing it when many of the claims are out of time. I have no difficulty in understanding what the Chairman meant when he expressed himself in that convenient shorthand.

34.

He mentions all the other circumstances; but I bear in mind how high the bar is on appeal to overturn a judgment of an Employment Tribunal Chairman when asked to exercise discretion to allow a point to be taken out of time. In my judgment, the Claimant has not shown an error of law or the exercise of discretion so wrong in principle as to meet the relevant test set out in Robertson.”

The reference to Robertson in the last line is to a passage in the judgment of Auld LJ at paragraph 25 cited by HHJ McMullen:

“It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the tribunal below plainly wrong in this respect”.

In giving leave Waller LJ said:

“In any event, it seems to me arguable that if all the allegations are going to be examined [as the Chairman suggested] in order to understand the full story, it is arguably wrong to conclude that it is not just and equitable to consider the earlier allegations...”

I confess to some doubt whether it will be necessary to consider all the complaints in order to deal with the complaints comprised in the third and fourth category, but, even if it were to be necessary, it does not, in my view, inevitably follow that the respondent should lose the benefit of the 3 month time limit. Indeed Miss Monaghan accepted that it was only a factor. She also submitted that the Chairman gave insufficient reasons. She refers to the words “all the other circumstances” in paragraph 42. I see no merit in that argument. She also submitted (in effect) that, even if the appellant fell outside section 68, it was sufficiently close to merit the application of this discretionary power.

In my view the Chairman reached a conclusion which he was entitled to reach. I note, in particular, the failure on the part of the appellant to advance any explanation for the non-presentation within time. The Chairman’s decision is not perverse.

In conclusion, the ET made no error of law and this appeal fails.

I agree

I also agree.