Case No: A2/2007/1065
A2/.2007/1065(Z)
Neutral Citation Number: [2008] EWCA Civ 341
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE ELIAS (PRESIDENT)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 28th February 2008

Before:

LORD JUSTICE PILL
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE LLOYD
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Between:

	ROYAL MAIL GROUP PLC 
	Appellant	
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JAN
	
Respondent	

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.

Mr B Uduje (instructed by Messrs Hammond) appeared on behalf of the Respondent.
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Judgment

Lord Justice Maurice Kay:

1.	This case has a complex factual background and procedural history.  Mr Jan commenced work with the Post Office as a postman in December 1974.  He progressed well in that employment, such that by his retirement at the age of 60 on 6 March 2006, he had risen to the grade ML3.  From 1996 until retirement he worked at Mount Pleasant.  Although graded and remunerated as an ML3, his actual duties were carried out at the lower level of ML4.  Unfortunately Mr Jan became ill in June 2004.  He had a heart attack and subsequent surgery.  He did not return to work until October 2005.  Because of his accrued holiday entitlement he was only available to work for some 15 days between October 2005 and March 2006.  By applications dated 15 July 2005 and 27 February 2006, Mr Jan made various claims against Royal Mail Group Plc and named individuals including Mr Calouri, Mr Pybus, Mr Turvey and Mr Hibbert, they being managers at Mount Pleasant.  He claimed direct race discrimination and victimisation under the Race Relations Act 1976, religious discrimination under the Employment Equality (Religious or Belief) Regulations 2003 and disability-related discrimination and failure to make reasonable adjustments under the Disability Discrimination Act 1995.  

2.	Before the Employment Tribunal, he succeeded in establishing his discrimination claims under the Race Relations Act and the Employment Equality Regulations but not the victimisation claim.  He also succeeded in relation to two allegations under the Disability Discrimination Act.  Royal  Mail appealed to the Employment Appeal Tribunal, which allowed its appeals in relation to discrimination under the Race Relations Act, the Employment Equality Regulations and one of the Disability Discrimination Act claims.  The second Disability Discrimination Act finding was not appealed.  The Employment Appeal Tribunal remitted the Race Relations Act discrimination point to the Employment Tribunal.  Mr Jan cross‑appealed in the Employment Appeal Tribunal in relation to the victimisation claims but the Employment Appeal Tribunal dismissed the cross‑appeal.  Mr Jan sought permission to appeal to this court.  The Employment Appeal Tribunal refused permission.  The application was then considered on the papers by Sir Henry Brooke.  He refused permission on a number of grounds but expressed concern about the scope of the remission to the Employment Tribunal.  He adjourned that matter for permission to be considered by a three judge court with appeal to follow if permission be granted.

3.	Thereafter Mr Jan renewed his application in relation to the proposed grounds upon which Sir Henry Brooke had refused permission.  His oral application was considered by Keene LJ, who adjourned a further aspect of the case to this hearing but finally refused permission on all other matters.  Thus there are two issues presently before us: (1) the dismissal by the Employment Tribunal and the Employment Appeal Tribunal of matters of alleged victimisation by Mr Pybus; and (2) whether, on remission to the Employment Tribunal, the Employment Tribunal should be permitted to consider the allegations in relation to Mr Turvey and Mr Pybus.  For reasons that I shall come to explain, that second matter has become academic.  

4.	I deal first with the issue of alleged victimisation by Mr Pybus.  In this regard it is necessary to describe something of the chronology of management involvement in Mr Jan’s employment.  Mr Calouri was the mail centre manager at Mount Pleasant from January 1999 until January 2003.  Mr Pybus was the mail centre manager from March 2003 onwards.  Mr Turvey was shift manager in 2002 to 2003 and international production manager from March 2003 to January 2005.  Mr Hibbert was production control manager from January 2005.  

5.	Mr Jan’s initial and central complaints related to an alleged failure by Mr Calouri, Mr Turvey and others, including Mr Pybus, to provide him with appropriate opportunities to advance his career as an ML3.

6.	The principal involvement of Mr Pybus was to investigate Mr Jan’s grievance in relation to Mr Calouri and Mr Turvey.  Prior to the hearing in the Employment Tribunal on 21 November 2005 the Employment Tribunal ordered Mr Jan to provide further and better particulars of his claim.  So far as Mr Pybus was concerned, the specific allegation became that he had:

“…failed in his investigation to justify the outcome.  In my view his decision was biased on hindsight.   He was the wrong person to be entrusted with any investigation concerning his peer groups.”

7.	It is apparent that that focused on Mr Pybus’ investigation rather than on Mr Pybus’s other involvement with Mr Jan’s deployment.  Nevertheless, in the hearing at the Employment Tribunal it is apparent that wider criticism of Mr Pybus was made by Mr Jan and was permitted by the tribunal.  At this stage it is necessary to refer to some of the findings of the tribunal relevant to the claim of victimisation by Mr Pybus.  The Employment Tribunal noted that Mr Jan had brought race discrimination proceedings in the Employment Tribunal on three previous occasions in 1979, 1993 and 1998.  It was established in evidence that when Mr Pybus became involved and in particular when he was to carry out the investigation, he obtained the files relating to that previous litigation history.  That is a point upon which Mr Jan attaches some significance, and indeed it is the factual point which led to Keene LJ keeping this aspect of the case alive when he considered it in October.  The tribunal referred to a number of involvements by Mr Pybus in connection with the deployment of Mr Jan.  It recorded that Mr Pybus decided to take upon himself the investigation of Mr Jan’s complaints.  It stated:

“Mr Pybus conducted an investigation which the Claimant appeared to accept was comprehensive and thorough.”

8.	The tribunal described the various meetings and communications that took place in relation to that enquiry.  It added:

“Mr Pybus’s conclusions are set out by complaint, giving very specific answers to the detail of the Claimant’s complaints.”

9.	During the period of Mr Jan’s sick leave Mr Pybus in fact appointed him to a substantive ML3 post in November 2004 although he never took that up, in that when he finally returned in the weeks before his retirement his deployment was dealt with by Mr Hibbert in a different manner that does not concern the case against Mr Pybus.  Following Mr Pybus’s rejection of Mr Jan’s complaints there was an internal appeal that was considered by Mr Slattery.  He dismissed Mr Jan’s appeal and no specific complaint was made about that in the employment tribunal.  In its conclusions the employment tribunal said this of Mr Pybus’s investigation:

“The Claimant…took his complaints to Mr Pybus in July 2003 and made an express allegation of race discrimination, perhaps for the first time.  Mr Pybus investigated, and we think that his investigation for someone at his level with his many responsibilities was reasonably thorough and we give him credit for that.  We also find that he made, in effect, an offer of the ML3 late shift post to the Claimant in 2003 which was turned down by the Claimant… We note Mr Pybus’s detailed response to the complaints in February 2004.  With some justification, he points to the fact that the claimant has not at all times been as much interested in career progression as he was in moving to a shift with the maximum shift allowance.  We find that the claimant has over this period of time blown hot and cold about what he wanted and has not done enough himself to pursue his own career…  It was really too late for the claimant by the time that Mr Pybus was looking at the position.  The Claimant had failed to seize the chances when they occurred and did not pro-actively manage his own career.  He was inconsistent about what he wanted.  These were some of the reasons why he was left behind.  Mr Pybus’s investigation was as thorough as it could be given the difficulties in going back over a number of years, and the Claimant should really have raised his complaints at a much earlier time.”

10.	In a later passage the employment tribunal appears to have accepted explanations by Mr Pybus and indeed Mr Turvey as to their approach to matters.  Finally, so far as victimisation is concerned, the tribunal said:

“In respect of victimisation we conclude that the claimant has not made out an Igen stage 1 case on this aspect of his claim on our findings of fact.”

11.	The reference to Igen stage 1 is a reference to the decision of the Court of Appeal in Igen v Wong [2005] EWCA Civ 142 and the two-stage test that is there propounded in connection with the current statutory provision on the burden of proof contained in section 54A(2) of the Race Relations Act 1976, as amended.  

12.	Before us today Mr Jan has developed his argument about Mr Pybus and victimisation.  He attaches significance to the fact that Mr Pybus had sent for the files in relation to the previous litigation which had occurred before Mr Pybus’s involvement.  The employment tribunal was mindful of the previous litigation.  It was referred to at the outset of the decision, and, in a later passage dealing specifically with Mr Calouri the tribunal said that Mr Calouri, like the other witnesses:

“…was aware of the claimant’s 1998 Tribunal proceedings in particular, but did not know a great deal about them and had not been involved in them.”

13.	Mr Jan submits that that was not an adequate way to deal with a fact as potentially significant as the sending for the files.  In legal terms, what Mr Jan is effectively submitting is that the sending for the files really took the case past the Igen stage 1 level and called for an explanation by Mr Pybus, disproving victimisation on racial grounds.  

14.	It seems to me that there are two answers to that.  The first is the one given by the employment tribunal in terms, namely that nothing in their findings, which included knowledge of the previous proceedings, no doubt as a result of sending for the files, was sufficient to take the matter past Igen stage 1.  They were entitled to consider all the evidence when addressing Igen stage 1 and, in my judgment, without more they were entitled to conclude that it had not been surmounted.  The fact that a person in Mr Pybus’s position sought to inform himself of the previous history in itself is not something which it seems to me demands an explanation.  The way in which the employment tribunal approached it and made findings about the investigation was such that I am satisfied that, taking the evidence as a whole, it was properly considered not to surmount Igen stage 1.  

15.	The second answer is that, even if I were wrong about that, it becomes abundantly clear from the other findings that, on the balance of probability, the tribunal was satisfied that none of Mr Pybus’s acts was afflicted by victimisation or any other impropriety postulated by the race relations legislation.  In other words, even if the tribunal should have specifically addressed the matter as an Igen stage 2 case, it is clear that their answer would have been that Mr Pybus had satisfied them that there was no victimisation on racial grounds in relation to any protective act.  Accordingly I conclude that there was no error of law on the part of the employment tribunal or on the part of the Employment Appeal Tribunal on this issue.  I do not consider that the ground of appeal has a real prospect of success and I would simply refuse permission to appeal in connection with it.  

16.	I turn to the second issue which is that of the scope of the remission by the Employment Appeal Tribunal to the Employment Tribunal.  The Employment  Appeal Tribunal ordered remission on the issues of race and religious discrimination alleged against Mr Calouri and Mr Hibbert.  Mr Jan’s case against Mr Calouri related to an alleged failure to provide him with appropriate opportunities between January 1999 and January 2003.  His case against Mr Hibbert related to the events in 2005 and 2006 concerning the management of his sick leave and his eventual return to work.  As the first application to the Employment Tribunal was not issued until 15 July 2005, the allegations against Mr Calouri would be out of time unless Mr Calouri’s conduct formed part of a continuing act.  The Employment Appeal Tribunal was alert to this when remitting the case in relation to Mr Calouri.  It stated:

“We should add that there is an issue in this case whether the complaints in any event that are directed against Mr Calouri would be out of time.  The Tribunal initially, at an earlier pre‑hearing, indicated that they took the view that all the allegations made against Mr Calouri, Mr Turvey Mr Pybus and Mr Hibbert could all be treated potentially as a succession of related complaints rather than as separate and distinct complaints.  But given that the complaints against Mr Turvey and Mr Pybus are no longer in the picture, the issue arises again whether even if the complaints against Mr Calouri, if sustained, establish a single act when treated together, whether they could be added to any subsequent successful discrimination claim made out against Mr Hibbert.  That is not a matter for us to determine, but the Tribunal in this case do not seem to have revisited that question in their decision and we think they ought to have done so.”

17.	It was the continuing act point, and the implications for the Calouri case being out of the time, that had troubled Sir Henry Brooke.  He said in his written order:

“The question whether permission to appeal should be granted so as to permit the ET on the remission to consider Mr Turvey’s and Mr Pybus’s roles in the continuing history after May 2002 is adjourned … I am … concerned that if the EAT’s order stands in its present form the ET might be persuaded that the complaint relating to Mr Calouri’s conduct is statute barred, unless it is entitled to consider that the failure to remove the Appellant from blocking duty over the whole period from May 2002 was a single course of treatment…”

18.	In the event, the remitted hearing in the Employment Tribunal has taken place long before the present hearing in this court.  Indeed, it took place between the order of Sir Henry Brooke and the hearing before Keene LJ, although the decision did not become available until a week or so after the hearing of Keene LJ.  What happened on the remitted hearing is that Mr Jan succeeded in his discrimination case as regards Mr Hibbert and, at a subsequent remedies’ hearing, he obtained a compensation award of £4,000 plus interest.  However, his case against Mr Calouri failed and the significant thing is that it failed on two grounds.  The tribunal was invited by Mr Oduje to consider the claim against Mr Calouri, not only by reference to the time difficulty but also on the merits.  In paragraph 36 of its decision, the Employment Tribunal dismissed the claim on its merits, concluding:

“On the evidence before us we cannot find that Mr Jan was less favourably treated and accordingly the burden of proof does not shift to the Respondent under Section 54A(2) and the claim of direct race discrimination in relation to Mr Calouri must fail.”

19.	It then went on to consider the question of time and section 68(7)(b) of the Race Relations Act, which provides:

“Any act extending over a period shall be treated as being done at the end of that period.”

20.	That is the foundation of the so called “continuing act doctrine”.  The tribunal concluded:

“…the complaints against Mr Pybus and Mr Turvey, having been dismissed in accordance with the judgment of the Employment Appeal Tribunal, all that remains is the complaint against Mr Calouri and the complaint against Mr Hibbert.  These are isolated and unconnected acts and therefore the complaint against Mr Calouri is out of time and there is no jurisdiction to consider that complaint.  

38. It is therefore the unanimous judgment of the Tribunal that the claim of direct race discrimination in relation to Mr Calouri is not part of the continuing act and there is no jurisdiction to consider it but, if the tribunal is wrong, and there is jurisdiction, the claim would fail in any event.”

21.	It follows that there is no longer a live issue in relation to the point that troubled Sir Henry Brooke.  The complaints, in relation to Mr Pybus and Mr Turvey, have fallen out of the picture as a result of the earlier decision of the Employment Tribunal which the Employment Appeal Tribunal and now we have upheld.  Accordingly, they could not constitute links in the chain of a continuing act.  The case against Mr Calouri, having now failed on the remitted hearing not just because of the time problem but also on merits, it seems to me that this point has become entirely academic.  There would be no purpose served in granting permission to appeal in relation to it and, in any event, in my judgment it is not a ground of appeal that ever had a real prospect of success.  Accordingly, I would refuse permission in respect of both issues.

Lord Justice Pill:  

22.	I agree.

Lord Justice Lloyd:  

23.	I also agree.

Order:  Application refused