Robinson v Royal Surrey County Hospital NHS Foundation Trust (Jurisdictional Points: Claim in time and effective date of termination), Court of Appeal - United Kingdom Employment Appeal Tribunal, July 30, 2015, [2015] UKEAT 0311_14_3007

Resolution Date:July 30, 2015
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Robinson v Royal Surrey County Hospital NHS Foundation Trust (Jurisdictional Points: Claim in time and effective date of termination)
 
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Copyright 2015

Appeal No. UKEAT/0311/14/MC

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 30 July 2015

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

MRS B ROBINSON APPELLANT

ROYAL SURREY COUNTY HOSPITAL NHS FOUNDATION TRUST

& OTHERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

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APPEARANCES

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SUMMARY

JURISDICTIONAL POINTS - Claim in time and effective date of termination

PRACTICE AND PROCEDURE - Striking-out/dismissal

At a Preliminary Hearing, the ET rejected the Claimant's case that her various claims of disability discrimination (direct; failure to make reasonable adjustments; harassment) constituted continuing acts, or that any such continuing act ended with the Claimant's dismissal (the specific complaint about which, it was accepted, was in time). It also struck out her whistle-blowing claim, as having no reasonable prospects of success.

The Claimant appealed from these decisions on the bases that (1) the ET had, when determining the question whether there was a continuing act, erred in considering each head of complaint separately; (2) the ET had further erred in concluding that the decision to dismiss was not part of such a continuing act simply because it had been taken by somebody not involved in the earlier allegations; (3) in deciding that the whistle-blowing case had no reasonable prospect of success, the ET wrongly carried out a summary determination of the merits of the Claimant's case when there was plainly a factual dispute.

The Respondent cross-appealed in respect of the whistle-blowing complaint, arguing that the ET erred in dealing with the application to strike out on the basis of an oral argument put forward by the Claimant at the Preliminary Hearing, which was no part of her pleaded case.

Held: Dismissing the appeal but allowing the cross-appeal

Disability Discrimination - claim in time - continuing act

The ET not erred in reaching the conclusion that the decision to dismiss was no part of an earlier continuing act. Its decision was not solely based upon the fact that the dismissal involved a decision-taker that had no involvement in the earlier matters complained of, although that was plainly a highly relevant factor (CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 CA). It had considered that factor in the context of there being no evidence to support an argument that the Claimant's dismissal was part of a series of acts and her dismissal having been due to capability (not because the Claimant would not work particular shifts or because she was asking for adjustments to her working arrangements or due to any of the other matters relied on by the Claimant as her pre-dismissal discrimination complaints). Considering how the Claimant had put her case before the ET, it was plain she was complaining about the dismissal decision not as a continuation of past discriminatory act but as arising from the consequences of such past discrimination (she was alleging that she could not attend work because of the consequences of the earlier discriminatory conduct; not that the dismissal decision was part of that conduct).

That being so, the first ground of appeal did not arise for determination: even taking all the different bases of claim together, if there was no link with the decision to dismiss, they remained out of time. If that were not so, the Claimant's argument - that the ET erred in failing to consider the claims together - might have some merit.

Even in that event, however, the Claimant would be faced with the difficulty that there had been a subsequent Full Merits Hearing of her complaints relating to the decision to dismiss (unfair dismissal and direct disability discrimination) before a different division of the ET, which had concluded they were unfounded. That rendered the appeal on this point academic. The Claimant was estopped from arguing that the decision to dismiss constituted the end of a discriminatory course of conduct. There was no injustice in this as it had been open to the Claimant to rely evidentially on all her pre-dismissal complaints as part of her case that her dismissal was unfair and/or an act of direct disability discrimination and she had done so.

Whistle-blowing - strike out of claim

Turning to the whistle-blowing claim and taking the cross-appeal first, it was common ground between the parties that the way in which the Claimant put this case at the Preliminary Hearing required an amendment and the ET's failure to adopt this approach amounted to an error of law. The Claimant had previously failed to particularise this case (in her ET1 or in response to a request on the part of the Respondent's solicitors) and had put it differently (albeit, again, without Particulars) at an earlier Preliminary Hearing. As the ET recognised, the way in which the Claimant argued she had a whistle-blowing complaint at the second Preliminary Hearing was a shift in position and she should have been required to formally amend her claim. Considering the case on the basis of the oral presentation without any requirement of amendment amounted to an error on the part of the ET. There was no dispute but that the claim as it had been pleaded (to the extent this was possible to discern) had no reasonable prospect of success and would have been struck out if only put on that basis.

Even assuming that the Claimant's oral presentation should have been treated as an implicit amendment of her claim, the ET's decision that it disclosed no reasonable prospect of success was one that it was entitled to reach.

Even if the ET had erred in this regard, the subsequent decision of the later ET at the Full Merits Hearing (that the dismissal was not a culmination of a plot to get rid of the Claimant) gave rise to an issue estoppel, alternatively meant that the claim was bound to be struck out in any event.

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HER HONOUR JUDGE EADY QC

Introduction

  1. I refer to the parties as the Claimant and the Respondents, as below. This is the hearing of the Claimant's appeal and the Respondents' cross-appeal in respect of the Reserved Judgment of the Reading Employment Tribunal (Employment Judge Salter, sitting alone on 12 February 2014; ``the ET''), sent to the parties on 4 March 2014. The Claimant, who appeared in person before the ET, is today represented pro bono by Mr Ohringer, counsel. The Respondents' solicitor represented at the ET; they are now represented by Ms Criddle, counsel.

  2. By its Judgment the ET ruled: (1) that the Claimant's claims of disability discrimination (save that of direct discrimination in her dismissal) had been presented out of time and the ET had no jurisdiction to hear them; and (2) that the Claimant's claim of detriment by reason of having made protected disclosures should be struck out as having no reasonable prospects of success. The substantive claim was thus permitted to proceed only on the Claimant's complaints of unfair dismissal and direct disability discrimination in relation to her dismissal.

    The Procedural Background

  3. The Claimant had presented her claim to the ET on 19 June 2013, having been dismissed from her employment on 25 March 2013. She complained of unfair dismissal, disability discrimination and ``other complaints''.

  4. On 23 October 2013, the Respondents' solicitors wrote to the Claimant asking her to state what her ``other complaints'' might be, detailing ``every fact and matter you intend to rely [on] in the bringing of these complaints''. The Claimant did not respond to that invitation.

  5. On 29 November 2013, there was a Preliminary Hearing before Employment Judge Gumbiti-Zimuto at which the ``other complaints'' were identified as a complaint of having suffered detriments on the grounds of having made a protected disclosure. At that stage the Claimant had not identified the protected disclosure on which she relied, save to say that she had first made a protected disclosure in about 2009 and that she had suffered detriment from then until around April 2012. That would make her ET claim, on its face, out of time.

  6. A further Preliminary Hearing was listed to consider whether the disability discrimination and protected-disclosure claims should be dismissed as out of time, whether the case should be struck out as having no reasonable prospect of success and, alternatively, whether the Claimant should be ordered to pay a deposit as a condition of pursuing her complaints. Thus the matter came before Employment Judge Salter on 12 February 2014.

  7. The Claimant produced witness statements for that hearing - her own and that of her witness, a Mr Morrison - and the ET had before it a bundle in excess of 1,000 pages. The ET noted the Claimant had been unable to identify her protected disclosures - albeit she was then saying that they had been made in 2011 - or the detriment she said she suffered as a result of making those disclosures. The ET further noted that the Claimant had not been working during the three months prior to the presentation of the ET1; the only event that occurred during that time was the capability hearing on 25 March 2013 (when the Claimant was dismissed), but the dismissal was not relied on as having been because of a protected disclosure. The detriment identified by the Claimant in her witness statement was:

    ``53. ... the collusive arrangement made by her managers to remove her from her employment culminating in a capability hearing [on] the 25 March 2013. The ``detriment'' was alleged to be the collusion that continued up to the date of the capability hearing. It was not the way in which the case was pleaded. ...''

  8. On the basis of the case put by the Claimant at that hearing, the Salter ET struck out the protected disclosure claim as having no reasonable prospect of success. It further considered that - with the exception of her claim that her dismissal...

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