Appeal No. UKEAT/0299/08/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 November 2008

Before
THE HONOURABLE MRS JUSTICE SLADE
MS V BRANNEY
MR D CHADWICK

MR D GRIMSHAW	APPELLANT

(1) GRIFFIN SIGNS LIMITED
(2) RYAN CALLANAN
(3) BARRY GUNNER
(4) NEIL BAILEY
(5) JOE NEWTON	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MRS J RUSSELL
(of Counsel)
Instructed by:
Messrs Russell Jones & Walker Solicitors
Swinton House
324 Gray’s Inn Road
London  WC1X 8DH	
For the Respondent	MS A STROUD
(of Counsel)
Instructed by:
Messrs Steeles Law Solicitors
3 Norwich Business Park
Whiting Road
Norwich  NR4 6DJ	

SUMMARY
SEX DISCRIMINATION:  Continuing act
JURISDICTIONAL POINTS:  Extension of time: just and equitable
There was no error of law or perversity in the judgment of the Employment Tribunal that the dismissal of Mr Grimshaw was not part of a continuing act of discrimination and that, apart from that relating to dismissal, his complaints of discrimination on grounds of sexual orientation, harassment and victimisation were out of time. Nor did the Tribunal err in concluding that this was not a case where it should exercise its discretion under Regulation 34(4) of the Employment Equality (Sexual Orientation) Regulations 2003 to consider the claims. 
THE HONOURABLE MRS JUSTICE SLADE

1.	This is an appeal from the judgment of the Employment Tribunal in Stratford after a five‑day hearing and two days in chambers.

Introduction
2.	Mr Grimshaw presented his complaints of unfair dismissal, discrimination on grounds of sexual orientation, harassment and victimisation to the Employment Tribunal on 31 August 2006.  His employment terminated on 31 March 2006. 

3.	The First Respondent, Griffin Signs Limited, was Mr Grimshaw's employer. Of the four individual respondents Neil Bailey is a director of Griffin Signs Limited and the three other individual respondents were employees who were alleged to have made homophobic remarks. 

4.	By its judgment entered in the Register on 3 April 2008 the Employment Tribunal held that Mr Grimshaw had been, as was agreed by the First Respondent, automatically unfairly dismissed by reason of the employer’s failure to comply with statutory procedures relating to his dismissal. The Tribunal made an award of compensation in the sum of £645.

5.	The Employment Tribunal, however, dismissed Mr Griffin’s claim for ordinary unfair dismissal. It also dismissed the claim that he had been discriminated against on the grounds of sexual orientation in being dismissed. There is no appeal against the dismissal of these claims. References below to direct discrimination, harassment and victimisation are to claims other than those which related to Mr Grimshaw’s dismissal. 

6.	The Tribunal held that Mr Grimshaw’s claims of direct discrimination on grounds of sexual orientation, harassment and victimisation failed because they were out of time and the Tribunal had no jurisdiction to entertain them. The Tribunal concluded that this was not a case in which it should exercise its discretion under the Employment Equality (Sexual Orientation) Regulations 2003 Regulation 34(3) to consider such complaints. These complaints are summarised in paragraph 15 of the skeleton argument for the purpose of this appeal. In substance they were that Mr Grimshaw was subjected to homophobic abuse in the context of a culture of discrimination and hostility in which two directors, one of whom was a respondent, and the employee respondents were not reprimanded or their conduct stopped. 

7.	Four grounds of appeal were advanced on behalf of Mr Grimshaw by Mrs Russell, who appears before us, as she appeared before the Employment Tribunal. 

8.	The first ground of appeal is that the Employment Tribunal erred in holding that there was no continuing act of discrimination after August of 2005 and that, therefore, the complaints in relation to discrimination on grounds of sexual orientation, harassment and victimisation were out of time. Further it is said that the Employment Tribunal erred in law and/or was perverse in not exercising its discretion on just and equitable grounds to consider Mr Grimshaw's complaints notwithstanding that they were presented out of time. The conclusions reached by the Tribunal on the time point apply to all respondents.

9.	By the second ground of appeal it is contended that the Tribunal erred in not holding acts of harassment to be direct discrimination. The third ground of appeal is a challenge to the dismissal of some of the complaints of harassment. Ground four relates to remedy. These three grounds of appeal are academic unless the appeal against the Tribunal's finding that it had no jurisdiction to consider Mr Grimshaw’s complaints succeeds. There is also a cross-appeal against findings of harassment. The outcome of the appeal against the decision of the Employment Tribunal that claims other than those relating to Mr Grimshaw’s dismissal were out of time, that time for presentation of such claims was not to be extended and therefore there was no jurisdiction to entertain them is determinative of the other grounds of appeal and renders the cross-appeal otiose. We therefore considered submissions on the jurisdiction point before deciding whether we needed to hear argument on the remaining grounds of appeal and the cross-appeal.

Relevant findings of fact 
10.	Mr Grimshaw began employment with the First Respondent on 21 June 2004 as a cleaner/packer. On 1 March 2006 he was informed that he was to be dismissed for redundancy and his employment terminated on 31 March 2006. The First Respondent conceded that they failed to carry out the appropriate statutory procedures.

11.	The First Respondent make signs, most of which are for the licence trade.  The business was set up by Neil Bailey and his wife Linda Bailey in 1993. 

12.	Neil Bailey is the Managing Director and his wife is a director.  The Tribunal observed it is very much a family business, with the other directors being Neil's brother, Ian, and his partner Lynne Blackburn.  During the time Mr Grimshaw was with the First Respondent he was one of eight employees.

13.	The Tribunal in our view rightly observed of the homophobic jokes and comments made in the workplace: 
"The day-to-day conversation was of a nature which might strike many people, heterosexual, homosexual, bisexual or asexual, as distasteful." (paragraph11)

Such language is unacceptable.

14.	The Tribunal considered the specific complaints that Mr Grimshaw made about homophobic language used in the workplace, harassment and discrimination on grounds of sexual orientation and victimisation. The Tribunal found Mr Grimshaw to be an unsatisfactory witness and prone to exaggeration. It set out in paragraph 10 of the judgment some of the reasons why it reached that conclusion.

15.	. Mr Grimshaw gave evidence of language used by Neil Bailey in July 2004 which made him feel uncomfortable. Also in July 2004 he went to see Linda Bailey and drew to her attention comments by co‑workers about "bums" and "anal sex". The Claimant was told that it was an incident relating to Steven Spooner which had given rise to these comments. The Tribunal found that, at the July meeting, Linda Bailey asked the Claimant if he wanted to make a complaint and he said that he did not but the comments were getting on his nerves. 

16.	In November 2004 .Mr Grimshaw went to see Linda Bailey again. He mentioned that two of the individual respondents were continuing to make offensive homophobic comments. Linda Bailey did not know that Mr Grimshaw was gay.  She took, so the Tribunal found, the Claimant at his word when he said he was concerned for Steven Spooner.  Linda Bailey, therefore, spoke to Steven Spooner and Neil Bailey spoke to another employee who was said to be involved in making these comments, Ryan Callanan.  Mr Spooner assured Mrs Bailey that he was not offended in the slightest, or even bothered by the jokes directed at him, and the Tribunal record that he gave evidence to similar effect before them. Linda Bailey told Mr Grimshaw that she had spoken to Steve Spooner and he was not bothered about the language. Mr Grimshaw assured Mrs Bailey that he was not offended for himself.

17.	In December 2004, the Claimant went to see Linda Bailey and Neil Bailey to complain about what he referred to as homophobic language used by two employees: Ryan Callanan and Barry Gunner. This time he made it clear that he was complaining on his own behalf.  Following this complaint and after consulting their accountant Mr and Mrs Bailey placed a memo in the pay slip of every member of staff, stating that offensive or homophobic language would not be tolerated.

18.	The Tribunal noted that after the December 2004 memo things settled down and the atmosphere in the workshop was congenial. In paragraph 17 of its judgment the Tribunal found that, with certain isolated exceptions (which they refer to later), the homophobic language ceased.

19.	At the beginning of 2005 the Claimant told Ryan Callanan that he was gay. 

20.	In January or February 2005, Barry Gunner shouted across the workshop to Steven Spooner, "I can't believe that you had a drink with a gay boy who was probably after your arse."  Mr Grimshaw heard this, so the Tribunal found, and was upset by it. The Tribunal also found that, in August 2005, Barry Gunner misheard on the radio a reference to a company called "Gate Gourmet" as "Gay Gourmet" and also he shouted out the words "bum boy” in the workshop. The Tribunal found those two occasions to be harassment of the Claimant.

21.	The Tribunal did not accept Mr Grimshaw’s evidence of an incident of harassment in July 2005 which involved Ryan Callanan. However it held that he had used the word ‘battyman’ in 2004 and that this constituted harassment of Mr Grimshaw.

22.	The Tribunal found that the last incident of harassment took place in August 2005. It found that, in around August 2005 in a conversation with Mr Grimshaw, Ian Bailey said, "I'm not really bothered if botty bashers work here as long as the work gets done".  Ian Bailey did not give evidence to the Tribunal. Ms Stroud points out that he did not give evidence because this allegation was not initially made.  However the Tribunal accepted that Ian Bailey used the words alleged. An explanation was advanced for the use of those words which the Tribunal rejected.  It held that this comment amounted to harassment of Mr Grimshaw. 

23.	The Tribunal then considered complaints made by Mr Grimshaw that certain other language used and events after August 2005 were harassment, discrimination on the grounds of sexual orientation or victimisation. It rejected a claim that the refusal of Ryan Callanan to speak to Mr Grimshaw because he had made a complaint about remarks which were alleged to be homophobic constituted victimisation. The Tribunal found that Mr Grimshaw’s complaint was not made in good faith. The Tribunal considered with care allegations made by Mr Grimshaw that conduct of other individuals towards him after August 2005 was harassment or discriminatory on grounds of his sexual orientation or constituted victimisation. It rejected those complaints.  

24.	In paragraph 19 of its Judgment, the Tribunal found:
"Where we have found that the matters did occur and have not expressed our contrary view, we find that the persons involved subjected the Claimant to harassment on the grounds of his sexual orientation.  We think that the conduct complained of created an offensive environment for the Claimant.  However none of those matters took place later than about August 2005 and are out of time unless the Tribunal extended the time on the just and equitable principle, or unless there was an act continuing into the relevant period before the presentation of the ET1."

25.	On 1 March 2006 Mr Grimshaw was told that he was to be dismissed for redundancy. He presented a grievance to his employers.

26.	On 31 August 2006 Mr Grimshaw presented his claim for unfair dismissal, discrimination, harassment and victimisation to the Employment Tribunal.

Decision of the Employment Tribunal
27.	At paragraph 34 of its judgment the Tribunal concluded that the only act which was within time (the Tribunal complaint having been presented on 31 August 2006) was the dismissal. The Tribunal found that the dismissal was not on the grounds of Mr Grimshaw’s sexual orientation and was not part of a continuing act of discrimination. It went on to hold at paragraph 34 of its judgment:
"We find that his claims for harassment, discrimination and victimisation fail entirely because they are out of time. The last act in respect of which we have made a finding in his [Claimant's] favour is no later than August 2005. In her final submissions Ms Russell for the Claimant has submitted that the Tribunal should extend time on just and equitable grounds. No reason for the delay has been given and we do not consider this a case where we should exercise the discretion."

Discussion
28.	The time limit provisions in the Employment Equality (Sexual Orientation) Regulations, 2003 provide by Regulation 34:
“34.	 (1) An employment tribunal shall not consider a complaint under regulation 28 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; 
(b)	…

	(1A)  Where the period within which a complaint must be presented in accordance with paragraph (1) is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (1). “

In this case, the statutory procedures applied and the time for presentation of a complaint to the Employment Tribunal was extended by a period of three months.

29.	Regulation 34 further provides: 
"	(3)  A court or tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

	(4)  for the purposes of this regulation, 

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

Continuing act
30.	On behalf of Mr Grimshaw, Mrs Russell contended that the Employment Tribunal erred in not holding that the employers had committed a continuing act by failing to take more active steps than they did to ensure compliance with their own equal opportunities policy and with the note placed in the wage slips in December 2004.  Further they should have taken active steps to curb any offensive behaviour which created an offensive environment for the Claimant. It was suggested by Mrs Russell that the employers should have taken disciplinary action and should have carried out formal investigations into the matters of which Mr Grimshaw complained.

31.	On the basis of that argument it is said, on behalf of Mr Grimshaw, that the Tribunal failed to adopt the correct approach to consideration of whether there was a continuing act within the meaning of Regulation 34(4)(b). It is said that on the evidence before it the Tribunal should have concluded that the acts continued until the date of dismissal of Mr Grimshaw and that, therefore, all his complaints should have been held to have been in time.

32.	For the Respondents, Ms Stroud seeks to uphold the judgment of the Employment Tribunal in this regard.  She relies, in particular, on the findings of fact that there was no harassment on grounds of sexual orientation of Mr Grimshaw after August 2005, and that appropriate steps, having regard to the size of the Respondents, were taken to discuss and to deal with such complaints as he drew to management's attention.  Having regard to the fact that the Tribunal found that the last act of harassment on grounds of sexual orientation took place more than a year before complaint was lodged in the Employment Tribunal, Ms Stroud says that there was no basis for a finding of a continuing act of discrimination after August 2005.

33.	An unnecessarily large number of authorities, including employment tribunal decisions, have been placed before us. Discrimination cases are particularly fact‑sensitive. Although it may be interesting to look at the approaches of different tribunals in different circumstances and to seek out to identify points of comparison, relevant legal principles are to be applied to the particular set of facts found by the Employment Tribunal in the case under consideration.

34.	The primary source of principles to be applied to questions of whether there is a continuing act of discrimination in circumstances such as these, where there is not a policy or a rule or a practice in issue, is the case of Hendricks v the Commissioner of Police for the Metropolis [2003] IRLR 96. In that case Mummery, LJ held at paragraph 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 side-tracked by focusing on whether a ‘policy’ could be discerned. Instead, the focus should be on the substance of the complaint 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.”

35.	Mrs Russell places particular reliance on Littlewoods Organisation Plc v Traynor [1993] IRLR 154. In that case, the Employment Tribunal had reached a conclusion that there had been a continuing act of discrimination which had its foundation in that the employers failed to take measures, which they said that they would take, to put right a situation which, by implication at least, was acknowledged as not satisfactory in relation to the provisions of the Race Discrimination Act. The Employment Appeal Tribunal did not interfere with the assessment of the Employment Tribunal that there had been a continuing act of discrimination constituted by the employers failing to act as they said they would which was to the detriment of the Complainant.

36.	Each case is fact‑sensitive and the answer to whether there is a continuing act of discrimination must depend upon the findings of fact made in each case and the inferences which may reasonably be drawn from those facts.  In this case, the Tribunal found that instances of harassment of the Claimant by reason of sexual orientation ceased in August 2005. Save for incidents in October and November 2005, it seems that the Claimant himself did not seek to rely on later specific incidents until his dismissal which he alleged was an act of discrimination of grounds of sexual orientation.

37.	Mrs Russell has helpfully provided, attached to her skeleton argument, a schedule or a chronology of events relied upon by Mr Grimshaw in support of his claim.  It is readily ascertainable from that chronology that, after the disagreement between Mr Grimshaw and one of the individual respondents to this claim on 20 October 2005, in respect of which there was a complaint, and another complaint raised on 29 November 2005, no specific incidents were relied upon by him save for a failure by one of the respondents in January 2006 to answer his ‘good morning’ greeting. The Tribunal held that the October and November matters were not related to sexual orientation.  Thus, even on his own case, Mr Grimshaw does not rely on any specific incidents, apart from those in October and November 2005, to make good his suggestion that there was a continuing act of discrimination after August 2005.  However, Mr Grimshaw contends that the employers should have been taking active steps to ensure that there was no harassment or discrimination related to sexual orientation.

Conclusion
38.	 The findings of fact of the Employment Tribunal have not been shown to be perverse. In our judgment, having regard to the finding of the Tribunal that the last act of harassment on grounds of sexual orientation was in August 2005, that the dismissal of Mr Grimshaw was not related to his orientation and findings of fact which do not lead to a conclusion that Mrs Bailey had acted inappropriately in dealing with Mr Grimshaw’s complaints, the Tribunal did not err in concluding that his dismissal was not part of a continuing act of discrimination. Accordingly, the challenge to the Tribunal's decision that it erred in law or came to a perverse conclusion in rejecting the contention that there was a continuing act of discrimination ending with the only act complained of which was held to be in time, fails. The Tribunal were entitled to conclude in paragraph 34 of their judgment that:
“Mr Grimshaw’s claims for harassment, discrimination and victimisation fail entirely because they are out of time.”

Just and equitable extension
39.	On behalf of Mr Grimshaw Mrs Russell further contends that the Tribunal erred in rejecting the submission that time for presentation of his complaints should be extended on just and equitable grounds.

40.	The Tribunal held, at paragraph 34, that:
"The last act in respect of which we have made a finding in his favour is no later than August 2005.  In her final submissions, Ms Russell for the Claimant has submitted that the Tribunal should extend time on just and equitable grounds.  No reason for the delay has been given and we do not consider this as a case where we should exercise discretion.”

41.	Before us, Mrs Russell has contended that in exercising its just and equitable discretion the Tribunal ought to have paid regard to the fact that the Claimant was pursuing a grievance, towards the end of his employment and an appeal after he had been told that he was to be dismissed. 

42.	Further, Mrs Russell contends that the Tribunal erred in failing in exercising its discretion under Regulation 34(3) to pay regard to the fact that the Respondent had given a mistaken or untrue answer to the question in the statutory questionnaire whether there had been any previous claims or complaints of discrimination.  Also, Mrs Russell prays in aid the suggestion that Mr Grimshaw was suffering from depression and was under strain.  However, she accepted that none of these were advanced as reasons for the delay in presenting a claim to the Employment Tribunal.  In fact, Mrs Russell accepts that no reason for the delay was advanced in evidence to the Employment Tribunal.

43.	Ms Stroud supports the conclusion of the Employment Tribunal. She points out that there have been innumerable cases in which comment has been made that time limits are to be adhered to and any exercise of the just and equitable discretion ought to be exercised on proper, sufficient and reasonable grounds.  Further, she points out that, the better view is that in the generality of cases pursuing an appeal against dismissal does not provide a good reason for not presenting a complaint within time. Ms Stroud relies on the case of Robinson v Post Office [2000] IRLR 804 in which Lindsay J (President) held at paragraph 31:
"We can only conclude that Parliament has quite deliberately not provided that invariably the running of time against an employer should be delayed until the end of domestic processes.  According, when delay on account of an incomplete internal appeal is relied upon as a reason for delaying an IT1 or failing to lodge it in time, and where that is not merely alleged but upheld as a matter of fact, if that allegation and that fact is fairly considered by the Employment Tribunal and put into the balance when the justice and equity of the matter is considered, that ordinarily will suffice for the Employment Tribunal to escape error of law as to that issue."

44.	Further, on the exercise of discretion Ms Stroud referred to Apelogun‑Gabriels v London Borough of Lambeth [2002] IRLR 116 in which the Court of Appeal approved the decision in Robinson and suggested a confined reading of Anyanwu v South Bank Student Union and South Bank University [1999] IRLR 303 in dealing with cases when an appeal is being pursued.  In Apelogun-Gabriels Peter Gibson LJ observed at paragraph 16:
“to the extent that Anyanwu ….lays down some general principle that one should always await the outcome of internal grievance procedures before embarking on litigation, in my judgment Anyanwu was, plainly, wrong.  It has long been known to those practising in this field that the pursuit of domestic grievance, or appeal procedures, will normally not constitute a sufficient ground for delaying the presentation of an appeal.”

Conclusion
45.	In Outokumpu Stainless Limited v Mr J Law [2007] EAT/0199/07/MAA, Beatson J held at paragraph 18:
“Bearing in mind the width of the discretion to extend time, and the circumstances in which it is proper for this Tribunal to set aside the decision of a Tribunal extending time, the decision to do so without the Claimant’s evidence in all the circumstances of this case raises a question.  Where a Claimant does not put evidence before a Tribunal in support of his application, explaining his delay and saying why an extension should be granted, how can the Tribunal be convinced that it is just and equitable to extend time?”

That was the situation in this case. No reason for delay in Mr Grimshaw presenting complaints of harassment, direct discrimination or victimisation was advanced before the Tribunal. In those circumstances, the observation of the Employment Tribunal in paragraph 34 of its judgment that no reason for the delay had been given and their decision that this was not a case where they should exercise their discretion to extend time under Employment Equality (Sexual Orientation) Regulations 2003 Regulation 34(4)(b) discloses no error of law or perversity.

46.	Accordingly, the challenge to the Employment Tribunal's rejection of Mr Grimshaw's complaints as being out of time fails and this appeal is dismissed.