Appeal No. UKEAT/0129/11/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 June 2011
	   Judgment handed down on 1 July 2011

Before
THE HONOURABLE MR JUSTICE KEITH
(SITTING ALONE)

ST JOHN AMBULANCE	APPELLANT

MR A MULVIE	RESPONDENT

Transcript of Proceedings

JUDGMENT

AMENDED

	APPEARANCES

For the Appellant	MS ANYA PALMER
(of Counsel)
Instructed by:
Bircham Dyson Bell LLP
50 Broadway
London
SW1H 0BL	
For the Respondent	MR SIMON CONNOLLY
(of Counsel)
Direct Access Scheme	

SUMMARY
VICTIMISATION DISCRIMINATION – Protected disclosure

The issue was whether a complaint under section 47B of the Employment Rights Act 1996 had been presented in time.   The employment judge ruled that that issue should be decided when the Claimant’s other claims were considered on their merits, because evidence was required to decide whether the various detriments to which the Claimant had allegedly been subjected formed part of a series of similar acts or failures within the meaning of section 48(3)(a).   The Employment Appeal Tribunal allowed an appeal against that ruling on the ground that no evidence was required to resolve that issue, since the latest detriment (which could not be regarded as a continuing act) had not occurred within three months of the date of the presentation of the complaint, and accordingly the question whether there was a link between the latest detriment and earlier detriments did not arise.   

THE HONOURABLE MR JUSTICE KEITH 
Introduction
1.	The Claimant, Alastair Mulvie, was employed by the Respondent, St John Ambulance, as its Director of Fundraising from 1 July 1999 until he resigned from his employment on 12 February 2010 with immediate effect.   He brought numerous claims against the Respondent and a number of individuals.   Those claims were presented to an employment tribunal office on 4 May 2010, and included a complaint under section 47B of the Employment Rights Act 1996 (“the Act”) that he had been subjected to detriments because he has made protected disclosures.  In due course, a hearing was convened to determine, amongst other things, whether this complaint had been presented in time.  Following that hearing at an employment tribunal at London Central, Employment Judge Henderson ruled that whether the complaint had been presented in time should be determined by the employment tribunal when all Mr Mulvie’s claims were to be considered on their merits.   The Respondent now appeals to the Employment Appeal Tribunal against that ruling.

The relevant statutory provisions
2.	Section 47B(1) of the Act provides:

“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.”

A worker’s right to present a complaint that he or she has been subjected to a detriment in contravention of section 47B of the Act is provided for by section 48(1A) of the Act.  Sections 48(3) and (4) of the Act deal with the time limit for presenting such a complaint.  They provide as follows:

“(3) An employment tribunal shall not consider a complaint under this section 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.
(4) 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 as done when it was decided on;
and, in the absence of any 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 detriments to which Mr Mulvie was allegedly subjected
3.	On 12 August 2010, a case management discussion took place before Employment Judge Neal.  Amongst other things, he ordered Mr Mulvie to produce a schedule for each of his claims setting out certain information.  The schedule relating to Mr Mulvie’s complaint under section 47B of the Act had to identify, in respect of each aspect of that complaint,

(1) the protected act, 
		(2) the date of the protected act,
		(3) to whom the disclosure was made,
		(4) the nature of the disclosure,
		(5) the alleged detriment,
		(6) the date of the alleged detriment,
		(7) by whom the alleged detriment was committed, and
(8) a cross-reference to where in the particulars of claim the complaint was set out.

4.	The schedule complying with that order relating to Mr Mulvie’s complaint under section 47B of the Act runs to 11 pages.   It set out a series of protected disclosures going back to 2002, but in the column in which Mr Mulvie was supposed to identify the detriments to which he had been subjected as a result of the protected disclosures he claimed to have made, many of the alleged detriments were not, on the face of it, detriments to which he had been subjected.   They were for the most part complaints that no action had been taken on the protected disclosures he had made, and whether the failure to take action on the protected disclosures he claimed he had made amounts to a detriment to which he was subjected is an issue which will have to be addressed if his complaint under section 47B goes to a full hearing.   Having said that, all the detriments to which Mr Mulvie claims that he had been subjected to related to detriments to which he had been subjected either on dates which he did not particularize or on dates which were before the end of 2009, with the exception of one, namely “the refusal of Sir Brian Jenkins [the Chairman of the Respondent’s Council of Trustees] and the Trustees in January 2010 to communicate with [Mr Mulvie] directly and/or engage its own grievance and/or whistleblowing policy”.  Accordingly, the Respondent proceeded on the basis that that was the last occasion on which Mr Mulvie was alleging that he had been subjected to a detriment.

5.	That detriment was cross-referenced to para. 163 of the particulars of claim.  Para. 163 of the particulars of claim reads as follows:

“On 12th January 2010 Jesper Christensen [a partner in the firm of solicitors acting for the respondent] wrote to [Mr Mulvie] stating that the respondent ‘was not going to revert to him further by way of any “resolution” of concerns [relating to his public interest disclosure]’.  He stated that it was a matter for the respondent to consider internally.  Mr Christensen suggested that mediation would be a forum for [Mr Mulvie] and the respondent to discuss the various other concerns which [Mr Mulvie] had expressed.  He stated that he had advised the respondent that it ought to meet with [Mr Mulvie] in order to discuss and resolve the ongoing concerns he had expressed and it seemed to him that mediation was the most appropriate way to achieve this.  Mr Christensen requested that [Mr Mulvie] should correspond with [the respondent’s solicitors] in respect of all matters rather than the Prior or any of the Trustees ….   [Mr Mulvie] avers that the refusal of the respondent to communicate directly with [him] and/or apply its grievance and/or whistleblowing procedures even at this stage amounted to a breach of the mutual term of trust and confidence and/or victimisation, and/or less favourable treatment on the grounds of [Mr Mulvie’s] public interest disclosure/disability/age.”

By cross-referring to that paragraph in the part of the schedule relating to the detriment which occurred in January 2010, Mr Mulvie was saying that the refusal of Sir Brian Jenkins and the Trustees to communicate with him directly or to “engage” the Respondent’s grievance and whistleblowing procedures related to what had been relayed to him by Mr Christensen’s letter of 12 January 2010.

The original arguments before the Employment Judge
6.	In the light of these facts, the argument advanced on behalf of the Respondent at the hearing at which the Employment Judge was to determine whether the complaint under section 47B had been presented in time was as follows.   When the schedule is read with the particulars of claim, it is plain that the last occasion on which Mr Mulvie was contending that he had been subjected to a detriment was when the refusal to communicate with him and to “engage” the grievance or whistleblowing policies had been conveyed to him by Mr Christensen on 12 January 2010.  That detriment amounted to a failure to act rather than an act itself for the purposes of section 48(3)(a), if only because Mr Mulvie himself described the detriment as a refusal to do something (which amounts to a failure to do something).  That triggered the application of section 48(4)(b) of the Act rather than the application of section 48(4)(a).  The question then was whether that failure to act was deliberate and when it had been decided on.   The failure to act had obviously been deliberate, again if only because Mr Mulvie had himself categorised it as a refusal to do something, and whenever it had been decided upon, it must have been decided upon by 12 January 2010 when Mr Mulvie had been told about it.  It followed that Mr Mulvie’s complaint under section 47B had to have been presented at the latest within three months of 12 January 2010, i.e. by 12 April 2010.  Since it had not been presented until 4 May 2010, the complaint had been presented out of time.

7.	The argument which was proposed to be advanced on Mr Mulvie’s behalf for the hearing before the Employment Judge is apparent from the skeleton argument which his then counsel, Ms Lisa Hatch, prepared for that hearing.  That argument was that some of the detriments to which it was claimed Mr Mulvie had been subjected formed part of a series of similar acts or failures.   They were highlighted in a copy of the schedule attached to the skeleton argument but did not include the one detriment to which he was alleged to have been subjected to in January 2010.   Accordingly, Mr Mulvie’s time for presenting his complaint under section 47B had been postponed until three months after the last of those acts.  The issue whether the various detriments to which it was claimed he had been subjected formed part of a series of similar acts or failures could not be decided without evidence, which would have to be preceded by proper disclosure and the preparation of bundles containing the relevant documents, and the evidence would probably take many days to be given.

8.	In that connection, Ms Hatch relied on Arthur v London Eastern Railway Ltd [2007] ICR 193.  That was a case in which a complaint under section 47B of the Act had been presented to the tribunal, and the issue was whether there had been a “series of similar acts” for the purposes of section 48(3).  Without hearing any evidence, the employment tribunal had ruled, at a pre-hearing review, that there had not been a series of similar acts, and it therefore excluded the majority of Mr Arthur’s claims as out of time.  The Employment Appeal Tribunal dismissed an appeal from that ruling, but Mr Arthur’s appeal was allowed by the Court of Appeal, the Court of Appeal holding that it was necessary for evidence to be called for the issue whether the detriments had amounted to a series of similar acts to be properly determined.   Accordingly, the Employment Judge was being asked by Ms Hatch – in her skeleton argument at any rate – to postpone the determination of whether the complaint under section 47B had been presented in time to the full hearing of the claim on its merits: only then could a proper determination be made about whether the detriments had amounted to a series of similar acts.

9.	The Respondent’s response to that argument was simple.  Whether or not the detriments which Mr Mulvie claimed he had been subjected to were part of a series of similar acts or failures was irrelevant if the last detriment to which he had been subjected had taken place more than three months before the claim was presented.   That is apparent from Arthur itself, because what Mummery LJ said at [35] was:

“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 three-month period and the acts outside the three-month period.”

If there were no acts in the three months before the claim was presented, it is not possible to look for any link between them and any other acts.  There was therefore no basis for the determination of the issue whether Mr Mulvie’s complaint under section 47B had been presented out of time to be postponed for the reason advanced on Mr Mulvie’s behalf.

10.	The Employment Judge did not agree with that.  She simply said that “mindful of the decision in Arthur” she accepted the submission advanced on Mr Mulvie’s behalf “that it would be potentially dangerous for [the tribunal] to decide on this issue [i.e. whether the complaint under section 47B was in time] without hearing evidence from the parties”.   Accordingly, she made the ruling which the Respondent challenges on this appeal.  In my judgment, her ruling on the basis on which she made it was flawed for precisely the reason advanced on behalf of the Respondent.  If Mr Mulvie had not been subjected to a detriment in the three months before 4 May 2010, the question of a link between the latest detriment to which he had been subjected and earlier detriments simply did not arise.

The refined argument before the Employment Judge
11.	Mr Mulvie has been represented on the hearing of this appeal by new counsel, Mr Simon Connolly.  He says that the argument advanced to the Employment Judge by Ms Hatch was refined at the hearing to take account of the argument advanced on behalf of the Respondent for the first time at the hearing.  Mr Mulvie’s legal team had not known about the reliance which the Respondent would be placing on the reference to Mr Christensen’s letter of 12 January 2010 in para. 163 of the particulars of claim and the schedule.  That is not a matter of criticism: there had been no direction for the exchange of skeleton arguments, the Respondent’s counsel (Ms Anya Palmer) had not been requested to provide one, and the Respondent had not been asked how it proposed to put its case on whether the complaint under section 47B had been presented in time.   But Mr Connolly told me that his instructions were that when Ms Hatch realised at the hearing before the Employment Judge what the Respondent’s case was, she said that part of Mr Mulvie’s case on the detriment to which he had been subjected was that he had invoked the Respondent’s grievance procedure in connection with his concerns, but that the Respondent had failed to address them.  She had not seen the letter of 12 January 2010.  It had not been brought to the tribunal because it had not been appreciated before then that the Respondent’s argument was going to be based on it.  But the point Ms Hatch made was that whatever the letter of 12 January 2010 said, it would have to be read in the light of Mr Mulvie’s allegation that the detriment to which he had been subjected consisted in part of the Respondent’s failure to deal with the various grievances which he had raised under the Respondent’s grievance procedure.   That failure had continued up to and including the date when he resigned from his employment, 12 February 2010, which was less than three months before his complaint under section 47B had been presented, though in order to determine whether the failure to deal with Mr Mulvie’s grievances was a continuing one up to and including 12 February 2010, it was necessary for the tribunal to examine the evidence in detail, and that exercise should be postponed until the hearing of all Mr Mulvie’s claims.

12.	Ms Palmer accepts that an argument along these lines was developed by Ms Hatch before the Employment Judge.  Indeed, that is apparent from the Employment Judge’s reasons.  She recorded Ms Hatch as saying that “part of the detriment was the respondent’s failure to address [Mr Mulvie’s] grievances … [Mr Mulvie] said that these failures continued right up to 12 February 2010 when he decided to accept the respondent’s fundamental breach.”

13.	It does not look as if the Employment Judge addressed the refined argument advanced on behalf of Mr Mulvie.  She concluded that evidence was needed to determine whether the detriments to which Mr Mulvie claims to have been subjected were part of a series of similar acts or failures.  She did not consider whether evidence was needed to determine whether the detriment to Mr Mulvie constituted by the Respondent’s failure to deal with his grievances continued up to 12 February 2010, or whether it was brought to an end by the letter of 12 January 2010.   It is therefore for the Employment Appeal Tribunal on this appeal to determine that question for itself.

14.	In my opinion, the answer is plain.  If what lay behind Mr Christensen’s letter of 12 January 2010 was the failure on the part of the Respondent to deal with Mr Mulvie’s grievances, the letter, on Mr Mulvie’s description of it in para. 163 of the particulars of claim, amounted to a refusal on the part of the Respondent to consider his grievances under the apparatus contemplated by the Respondent’s procedures.  Instead, the Respondent had suggested that mediation should be the forum in which Mr Mulvie’s concerns could be discussed with the Respondent.  Accordingly, up to 12 January 2010 the detriment may have been the Respondent’s continuing failure to deal with the outstanding grievances which Mr Mulvie had raised through its procedures.  But the letter of 12 January 2010 had brought that continuing failure to an end by the Respondent’s decision that it was not going to deal with them at all through its procedures.  That decision – described by Mr Mulvie as a refusal to communicate with him or to “engage” its grievance and whistleblowing procedures – could only be characterised as

(a) a failure to act, i.e. a failure to proceed with a consideration of Mr Mulvie’s grievances through the Respondent’s procedures, and

(b) a deliberate failure to act, not only because it was described by Mr Mulvie as a refusal, but also because “deliberate” in this context means “unintended”, and there can be no question but that the Respondent intended to bring Mr Mulvie’s use of the Respondent’s procedures to an end, 

and has to have been decided upon by 12 January 2010 because that was when the refusal was communicated to him.

Some additional arguments
15.	In the interests of completeness, I should add that a different argument was advanced on Mr Mulvie’s behalf in the answer to the Respondent’s appeal drafted by Ms Hatch when she was still instructed on Mr Mulvie’s behalf.  The argument was that Mr Christensen’s letter of 12 January 2010 was marked “without prejudice”.  That was said to cast “doubt on the respondent’s assertion that they made it clear that they would not consider his grievances any further”, and to determine whether the letter really meant what the Respondent claims it meant, the letter should have been produced to the Employment Judge.

16.	That argument is not a good one.  The Respondent did not need to produce Mr Christensen’s letter since its effect had been summarised by Mr Mulvie in para. 163 of his particulars of claim.  The Respondent accepted that his summary of the letter was accurate, and therefore there was no need for the Employment Judge to see it.  Moreover, I do not understand why the fact that it was marked “without prejudice” could have cast “doubt on the respondent’s assertion that they made it clear that they would not consider his grievances any further”.  In that context, I have read the letter of 12 January 2010 (admittedly without ruling on whether it was permissible for me to do so) because Mr Connolly asked me to do so, even though it had not been before the Employment Judge.  I have not discerned any material difference between it and Mr Mulvie’s description of its contents in para. 163 of the particulars of claim.

17.	There is one further matter I should mention.  Mr Connolly argued that the contents of para. 166 of the particulars of claim amounted to a further detriment to which Mr Mulvie had been subjected as a result of making protected disclosures.  Para. 166 reads:

“On or around 1st February 2010 [Mr Mulvie] became aware of an advertisement on the respondent’s website for a ‘PA to Director of Fundraising, Communications and Marketing (sic), Chief President and to the Head of Communications’.  The advertisement clearly excluded [Mr Mulvie] and his role and the resources which should have been available to him as Director of Fundraising.”

This was not one of the detriments relied on by Mr Mulvie in the schedule produced pursuant to the order made by Employment Judge Neal at the case management discussion on 12 August 2010.   But leaving that aside, and assuming that the advertisement amounted to a detriment to which Mr Mulvie was subjected as a result of making protected disclosures, the detriment consisted of the Respondent placing the advertisement on its website.  The fact – if it be the case – that it continued to be on the Respondent’s website until after 4 February 2010 does not help Mr Mulvie.  The act which constituted the detriment consisted of the placing of the advertisement on the Respondent’s website.  That was when on Mr Mulvie’s case he was sidelined.  The fact that he continued to be sidelined until he resigned on 12 February 2010 does not mean that the specific act which resulted in him being sidelined extended over that period.  As the Court of Appeal held in Sougrin v Haringey Health Authority [1992] ICR 650, there is a difference between an act which extends over a period and the continuing consequences of such an act.   The former can extend the time within which a claim can be brought, but the latter cannot.

Conclusion
18.	In the circumstances, I have concluded that Mr Mulvie’s complaint under section 47B had to be presented at the latest within three months of 12 January 2010, i.e. by 12 April 2010.   Since it was not presented until 4 May 2010, it was presented out of time.  The Respondent’s appeal must be allowed, the ruling of the Employment Judge must be set aside, and I record the fact that Mr Mulvie’s complaint under section 47B was presented out of time.  But that does not mean that the Respondent is entitled to have Mr Mulvie’s complaint under section 47B struck out.  There is still section 48(3)(b) to be considered.  Was it reasonably practicable for the complaint to be presented by 12 April 2010?  If not, would it be reasonable to extend Mr Mulvie’s time for presenting it to 4 May 2010?  Those are issues which have still to be addressed.

19.	Ms Palmer argued that the time for Mr Mulvie to have sought an extension of time for presenting his complaint was when the Employment Judge was considering whether it had been presented in time.  He did not do that then, and it is too late for him to do that now.  I do not agree.  There had been no order setting out the issues to be addressed at the pre-hearing review, even though the Respondent had set out the issues which it had wanted to raise.  Since the Employment Judge reserved her decision on the various orders to be made following the pre-hearing review, it would be wrong to say that Mr Mulvie had had to apply for an extension of time for presenting his complaint under section 47B at the pre-hearing review in case the Employment Judge found that it had not been presented in time.  Since Mr Connolly told me that Mr Mulvie wished to apply for an extension of time in the event of my ruling that his complaint had been presented out of time, that is an issue which the employment tribunal still has to address.