Employment Cases Update

Odukwe v The Partners of Hoare Lee Consulting Engineers UKEAT/0547/10/SM

Date published: 27/01/2012

Appeal against findings that the claimant had failed to lodge a relevant grievance for the purpose of s32 of the EA 2002 and that claims were out of time as he had not satisfied the relevant extension conditions. The appeal succeeded on the first point but failed on the second point.

The claimant, who is black, was dismissed by way of redundancy on 5 March 2009 with immediate effect but given 5 days to appeal. He did not do so until May /June and his appeal was dismissed and so he issued an ET1 on 24 August in which he claimed that his unfair dismissal was the culmination of racial discrimination and victimisation. A PHR dismissed the claims for want of jurisdiction partly as, in light of the dispute resolution regime under the EA 2002, the appeal letter raising the grievance did not match the complaints listed in the ET1, and because it would be just and equitable to extend time.

In this judgement, Underhill J tackles the two issues separately. On the s32 point, he notes that he prefers the approach of Elias P in Martin that the question is a mixed one of fact and law. He then goes to find that at [15]

"Once it is accepted that point 5 in the letter is to be understood as raising a complaint about past incidents of discrimination, I do not think it matters that the Appellant does not describe those incidents in the same degree of detail as in the claim form. It must be borne in mind that all that is required under step 1 is that the employee should indicate the nature of the complaint: further detail – in the statutory language, the "basis" for the complaint – can be supplied at a later stage. "

However on the issue of time extension, he concludes that the issue was a matter of fact alone and that it was evident to the judge  "that an employee who had been given a time limit of five days to appeal but had waited for ten weeks before doing so could not reasonably have believed that the mere lodging of a letter of appeal would initiate a disciplinary process", distinguishing Towergate as in that case the employee had been sent further information about the redundancy selection whereas in this case there had been no relevant communication until the belated appeal letter. Further, he rejects the argument that the act of dismissal was the last in a series of continuing acts, and so the claimant could take advantage of a three month extension to 4 June for raising the grievance, as Reg 15 of the  Employment Act 2002 (Dispute Resolution) Regulations 2004 make a clear distinction between acts of dismissal and other acts. Finally he notes that it was a pity that the outcome of the appeal depended on technicalities but adds that  he could see no real injustice as a result.

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Appeal No. UKEAT/0547/10/SM

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 25 November 2011

Judgment handed down on 27 January 2012

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) (SITTING ALONE)

MR C ODUKWE (APPELLANT)

THE PARTNERS OF HOARE LEA CONSULTING ENGINEERS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
MR PATRICK HALLIDAY (of Counsel)

Instructed through the Bar Pro Bono Unit

For the Respondents
MR JOHN MEHRZAD (of Counsel)

Instructed by:
Lewis Silkin LLP
5 Chancery Lane
Clifford's Inn
London
EC4R 1BE

SUMMARY

JURISDICTIONAL POINTS – 2002 Act and Pre-Action Requirements

Claims under the Race Relations Act 1976 – Judge wrong to hold that employee had failed to lodge a relevant grievance for the purpose of section 32 of the Employment Act 2002 (dicta of Elias P in Martin v Class Security Installations Ltd that the relevant issue was one of mixed fact and law preferred to decision of Judge Burke QC in in Commotion Limited v Rutty); but correct to hold that the relevant claims were nevertheless out of time since the Claimant did not satisfy the conditions for an extension of time under regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 in relation to either his complaint about his dismissal or his "non-dismissal" complaints – As regards the former, Towergate London Market Ltd v Harris distinguished – As regards the latter, held that the regime for extending time under regulation 15 did not permit a claimant to rely on a "dismissal complaint" held that the Appellant could not rely on his dismissal, in respect of which the Tribunal had no jurisdiction, as the final term of a "an act continuing over a period"

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1. The Respondents are a firm of consulting engineers. The Appellant, who is black, started work for them on 7 April 2008. On 5 March 2009 he was dismissed, as part of a redundancy exercise, with immediate effect. He was informed that he could appeal against that decision by giving notice within five days. He did not do so at the time; but in May or June (the reason for the uncertainty will appear below) he lodged a belated appeal. There was an appeal meeting on 22 July but the eventual decision was to confirm the dismissal.

2. On 24 August 2009, i.e. some 5½ months after his dismissal, the Appellant presented a claim in the Employment Tribunal. He was not at that point represented and he appears to have filled in the claim form without the benefit of legal advice. It is necessary for the purpose of the issues in this appeal to analyse that claim in a little detail. I do so as follows:

(1) He completed both section 5 of the standard form, which relates to a claim of unfair dismissal, and section 6, which relates to a claim of discrimination: so far as the latter is concerned, he ticked the box for "race".

(2) The claim of unfair dismissal was expressed as follows:

"My unfair dismissal is a culmination of months of racial discrimination, breach of my human right, breach of the duty of care, breach of the equal opportunities policy, miscarriage of justice. All these were evidenced by months of harassment, bullying, victimisation, abuse, intimidation, humiliation, offensive slang terminology, mockery, discouragement, exaggeration of alleged faults and traumatic stress which I suffered at Hoare Lea Poole. These incidents took place from 06/07/08 to 06/03/09."

(3) As for the discrimination claim, section 6.2 of the form asks the claimant to "describe the incidents which you believe amounted to discrimination, the dates of these incidents and the people involved". The Appellant filled in this section at considerable length, over several pages. The structure consists of a chronological narrative, though with some comments interspersed. It describes, at paras. 2-12, a number of specific incidents and communications between himself and a supervisor called Ian Billington in which, in short, Mr Billington is said to have repeatedly criticised the standard of his work in a bullying and humiliating manner. At para. 13 he describes how a new supervisor, Mr Paul Cornwell, was appointed on 23 December 2008 and also behaved in a bullying and intimidatory manner. At para. 14 he begins to describe an incident on 5 January 2009 when he says Mr Cornwell rejected a piece of his work in a peculiarly offensive manner, but the page ends in mid-sentence. The Respondents in their ET3 drew attention to the fact that one or more pages appeared to be missing, but the Appellant did not then (and has not at any date subsequently) supplied any further pages or offered any comment or explanation.

(4) Although section 6 of the claim form says nothing about the decision to dismiss the Appellant, it is accepted before me that the form has to be read as a whole and that, having regard to what is said in section 5, the Appellant should be understood to have been seeking to raise a claim of discriminatory dismissal, distinct from any claim of unfair dismissal, notwithstanding that that allegation is made in the wrong section of the form.

I should say that none of the allegations made against Mr Billington or Mr Cornwell involves any kind of overtly racist behaviour or language. Rather, what the Appellant describes is a number of incidents of what he perceives as unreasonable and humiliating behaviour, which is not expressly said to be racially motivated. There would in fact be nothing to indicate that what was alleged was race discrimination save the ticking of the "race" box in section 6.1 (and, insofar as they are to be read together, the use of the phrase "racial discrimination" in section 5).

3. The claim of unfair dismissal was struck out in November 2009 because the Appellant had less than one year's service: no point arises on that for present purposes. Directions were given on the same occasion for a pre-hearing review to consider whether the Tribunal had jurisdiction to determine the claim of race discrimination, by reference both to the provisions of the dispute resolution regime under the Employment Act 2002, which was then still in force, and to potential limitation issues. That PHR took place before Employment Judge Green, sitting in Southampton, on 7 April 2010. The Appellant was represented by a solicitor and the Respondents by Mr John Mehrzad of counsel. Judge Green held that the Tribunal had no jurisdiction to determine the Appellant's claim. Her Reasons were sent to the parties on 12 August.

4. The Appellant has appealed. At an appellant-only preliminary hearing before HH Judge Peter Clark on 17 March 2011 the appeal was allowed to proceed on three grounds identified in his judgment. A fourth was dismissed. One of the grounds concerns the effect of section 32 (2) of the 2002 Act. The other two are concerned with limitation. I take them under those headings.

5. Before me the Appellant has been represented by Mr Patrick Halliday, appearing pro bono, and the Respondents were again represented by Mr Mehrzad.

(1) SECTION 32 (2)

6. Section 32 applies to the jurisdictions specified in Schedule 4 of the 2002 Act. These include claims under Part II of the Race Relations Act 1976. Sub-section (2) reads:

"An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if –

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of the Schedule 2 applies, and

(b) the requirement has not been complied with."

7. The reference in section 32 (2) to the requirements of paragraph 6 or 9 of Schedule 2 are, respectively, to the "standard" and "modified" grievance procedures there set out. Whether those procedures apply in any given case depends on regulation 6 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. It is common ground that the applicable procedure in the present case was the standard, rather than the modified, procedure. The effect of paragraph (1) is that the relevant procedure applies to any complaint about an alleged act of racial discrimination; but that is subject to paragraph (5), which reads:

"Neither of the grievance procedures apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee."

Thus, as both parties accept, it is necessary to distinguish between the Appellant's complaint that his dismissal constituted an act of racial discrimination (see para. 2 (4) above) and the remainder of his complaints of discrimination as set out in section 6 of the claim form (see para. 2 (3) above): section 32 (2) applies to the latter but not the former.

8. It was accordingly necessary for the Appellant to show, as regards his "non-dismissal complaints", that he had complied with step 1 of the statutory grievance procedure. This is prescribed by paragraph 6 of Schedule 2 to the 2002 Act in the following terms:

"The employee must set out the grievance in writing and send the statement or a copy of it to the employer."

9. The Appellant's primary case before the Tribunal was that he had complied with step 1 by sending the Respondents a letter dated 31 May 2009 in the following terms:

"MY APPEAL AGAINST UNFAIR DISMISSAL AND REDUNDANCY BY HOARE LEA POOLE

I am writing to appeal against the unfair dismissal and redundancy by Hoare Lea Poole. I outline the following reasons for my appeal:

1. The selection procedure was unfair and did not follow reasonable procedures as set out in the ACAS (Advisory, Conciliation and Arbitration Services) Code of Conduct.

2. Hoare Lea Poole failed to implement the reasonable suggestions and responses regarding alternatives to redundancy which I presented during the consultation meetings.

3. Unlawful discrimination on grounds of race.

4. Unlawful discrimination on grounds of my designation as a Graduate Electrical Engineer and bad reference from my Supervisor.

5. Hoare Lea Poole failed to stop the racial discrimination, victimisation, abuse and traumatic stress which I continuously faced from my Supervisor Paul Cornwell.

Thanks for your anticipated cooperation and I look forward to your prompt response."

He received no reply to that letter: to anticipate, it was the Respondents' case that they had never received it, and indeed they put in issue whether it had been sent. He wrote again on 18 June. That letter begins as follows:

"RE: MY LETTER OF APPEAL AGAINST UNFAIR DISMISSAL AND REDUNDANCY BY HOARE LEA POOLE

With reference to my previous letter of Appeal dated 31/05/09, I have not received any response from you. I have received further instructions from my Solicitors and the Employment Tribunal to send you a reminder before taking this case to further. In my previous letter, I appealed against the decision of Hoare Lea Poole to select me for redundancy and I outlined the following reasons for my appeal: …"

The Appellant then repeats, in identical terms, points 1-5 from his earlier letter. The letter concludes:

"I have documented evidences to substantiate my claims and I have received legal advice on the negative impact which this case will have on Hoare Lea's profile in UK and overseas and this is the reason why I am sending this reminder before further proceedings to the highest levels. I am open to dialogue so that we can resolve this case amicably at this stage."

That letter was unquestionably received, and it was in response to it that the Respondents held the appeal meeting on 22 July.

10. The issue for the Judge was whether the complaints stated, in substantially identical terms, in the letters of 31 May and 18 June constituted the statement of a grievance within the meaning of paragraph 6 of Schedule 2; and, if so, whether the grievance so stated was substantially the same as the non-dismissal complaints set out in section 6 of the claim form. Since the second letter had unquestionably been sent, and sent prior to the presentation of the claim in the employment tribunal, it did not (as regards this issue) matter whether the first letter had been sent, and in fact the Judge explicitly declined to decide that question (Reasons, para. 6.15).

11. The Judge's decision on that issue appears at paragraphs 6.18–6.21 of the Reasons as follows:

"6.18 I now consider whether the letter of 31 May 2009 could be considered a grievance. It could have simply been mislabelled. The contents would certainly not have been out of place in a grievance letter. However, it was treated as an appeal letter by the Respondent and the Claimant did not demur from that nor did he complain that his grievances were not heard. Giving the Claimant the benefit of the doubt I assume that the letter was a grievance. To satisfy the requirements of S32 the grievance simply has to be sent. There is no requirement that it has to be received.

6.19 I now consider the contents of the letter of 31 May 2009. Step 1 of the standard grievance procedure requires that "The employee must set out the grievance in writing and send the statement or a copy of it to the employer". A grievance is defined in Regulation 2(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 as "a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him". S32(2) Employment Act 2002 makes plain that the complaint to the employer must be essentially the same complaint as that subsequently advanced before the Tribunal. In Canary Wharf it is was held that the statute will be fairly met if the employers, on a fair reading of the grievance and having regard to the particular context in which it is made, can be expected to appreciate the relevant complaint that is being raised. If the statement cannot be read even in a non-technical and unsophisticated way as raising the grievance the subject matter of the complaint then the letter does not satisfy S32 and the Tribunal cannot hear the complaint. There is no doubt whatsoever that the matters raised in the Claimant's ET1 could not in any way be inferred from either the Claimant's letter of 31 May 2009 of his letter of 18 June 2009. The allegations in the Discrimination section of the ET1 barely raise discrimination at all. His allegations are:

6.19.1 That his employment was confirmed following a probationary period.

6.19.2 He had regular meetings with his training supervisor, Mr Billington who bullied, intimidated and humiliated him.

6.19.3 While his work was criticised from time to time he won an award at a graduate engineers conference.

6.19.4 His training supervisor changed and became Mr Cornwell. He was asked to perform some work over Christmas and that work was criticised by Mr Cornwell.

6.19.5 The Claimant was humiliated by his new training supervisor on front of colleagues.

6.20 The letter of 31 May 2009 stated as regards discrimination:

6.20.1 Unlawful discrimination on the grounds of Race.

6.20.2 Unlawful discrimination on grounds of my designation as a graduate electrical engineer and bad reference from my supervisor.

6.20.3 Hoare Lea Poole failed to stop the racial discrimination, victimisation, abuse and traumatic stress which I continually faced with my supervisor Paul Cornwell.

6.21 For the reason that he Respondent, on reading the Claimant's letter of 31 May 2009 could not, on a fair reading of the grievance, and having regard to the particular context in which it is made, be expected to appreciate the relevant complaint that is being raised, the letter does not satisfy the requirements of S32 Employment Act 2002."

12. It will be seen that, as to the question whether the letter of 31 May raised a grievance at all (i.e. because it was couched in terms of an "appeal"), the Judge gave the Appellant the benefit of the doubt: see para. 6.18. As to the question whether the grievance so raised was substantially the same as the complaint pleaded in the ET1, her essential point was that it was impossible to identify the particular complaints raised in section 6 of the claim form (which she summarises at 6.19.1-5) in the text of the letter.

13. As to the first part of that reasoning, I think that the Judge was probably right. The case is very near the borderline because both the heading and the general thrust of the letter appear to convey that the Appellant was complaining only about his dismissal. However, point 5 at least is difficult to account for if that was all that the Appellant was intending to complain about. It is on its face a complaint about his treatment prior to, and quite apart from, the dismissal; and, on balance, I think that an employer reading the letter reasonably and in a common-sense way would have understood that the matters raised thereby constituted a distinct grievance which required to be addressed. In any event, this part of the Judge's reasoning is not challenged in the Respondents' Answer nor did Mr Mehrzad criticise it in his submissions before me.

14. I turn therefore to the second element in the Judge's reasoning. I start with a preliminary point. Mr Mehrzad submitted that her conclusion could only be overturned on appeal if it were held to be perverse. He relied on a passage in the judgment of this Tribunal in Commotion Limited v Rutty [2006] IRLR 171, where Judge Burke QC recited, with apparent approval, the submission of counsel that "whether a document does constitute the presentation of a grievance or not is a question of fact" (para. 31, at p. 176). However, in Martin v Class Security Installations Ltd (UKEAT/0188/06) Elias P doubted whether that was the correct approach, describing the question as "not … entirely a question of fact but one at least of mixed fact and law" (see para. 16). I respectfully agree. I think that it is for me to consider the proper construction of the letters for myself.

15. Taking that approach, I think, with respect to her, that the Judge was wrong. Once it is accepted that point 5 in the letter is to be understood as raising a complaint about past incidents of discrimination, I do not think it matters that the Appellant does not describe those incidents in the same degree of detail as in the claim form. It must be borne in mind that all that is required under step 1 is that the employee should indicate the nature of the complaint: further detail – in the statutory language, the "basis" for the complaint – can be supplied at a later stage. In a well-known passage in the judgment in Shergold v Fieldway Medical Centre [2006] ICR 304 Burton P said, at para. 36 (p. 315G), that the need for the complaint raised in the grievance to relate to the subsequent claim

"… does not begin to mean that the wording of the simple grievance in writing required under paragraph 6 and the likely much fuller exposition of the case set out in proceedings must be anywhere near identical … ."

It is clear that the complaints against Mr Cornwell referred to in very general terms at point 5 in the letter of 31 May are the same as those raised in the claim form. It is true that there is no reference to the complaints about Mr Billington, but point 3 in the letter makes a general allegation of "racial discrimination", and in my view the omission of even an important particular of this kind is not sufficient to make the grievance and the subsequent pleaded case non-corresponding.

16. I accordingly hold that section 32 (2) did not deprive the Tribunal of jurisdiction to determine the non-dismissal complaints.

LIMITATION

17. The primary time limit applicable to the complaints is three months from the date of the act complained of: see section 68 (1) (a) of the 1976 Act. On that basis the Appellant's complaints were out of time. The Tribunal would nevertheless have jurisdiction if either (i) it decided that it was just and equitable to extend time under section 68 (6) or (ii) the provisions of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 – which, at the risk of oversimplification, provide for a mandatory extension of three months where the applicable procedure under the 2002 Act is being followed – applied.

18. As for (i), the Judge held that it would not be just and equitable to extend time (see Reasons para. 6.22). The Appellant challenged that decision in the Notice of Appeal; but Judge Clark did not allow the appeal in that regard to proceed.

19. As for (ii), regulation 15 reads as follows:

"(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and -

(a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or

(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;

the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.

(2) The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise …, was being followed in respect of matters that consisted of or included the substance of the tribunal complaint.

(3) The circumstances referred to in paragraph (1)(b) are that the employee presents a complaint to the tribunal—

(a) within the normal time limit for presenting the complaint but in circumstances in which section 32(2) or (3) of the 2002 Act does not permit him to do so; or

(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit."

It will be seen that the provisions work differently depending on whether the complaint in question attracts the operation of the dismissal and disciplinary procedures on the one hand or the grievance procedures on the other. That being so, I need to consider separately the dismissal and non-dismissal complaints.

(a) THE DISMISSAL COMPLAINT

20. The relevant provisions of regulation 15 are limb (a) of para. (1) and para. (2). Applying those provisions to the circumstances of the present case, the dispositive question is whether, as at 6 June 2009, being the date at which the primary time limit expired, the Appellant had reasonable grounds for believing that a "dismissal procedure" was being followed. It was his case before the Judge that he did have such grounds because he had, six days previously, sent his appeal letter. The Respondents, as noted above, put it in issue whether that letter had been sent, but the Judge declined to decide the point. She held that the Appellant could not rely on regulation 15 (1) (a) because even if the letter had been sent it was not reasonable for him to believe on that basis alone that a procedure was being followed. She said, at para. 6.17:

"I now consider whether the Claimant could have reasonably considered that a disciplinary process was continuing at the time he lodged his appeal on 31 May 2009. It seemed to me that the Claimant could not have reasonably considered a disciplinary process was continuing. He had been given 5 days to appeal. He was appealing some 10 weeks after his dismissal. Further, he complained to the Respondent after the date for lodging his complaint that they were not responding to his appeal and that the Respondent had not complied with the statutory process. The Claimant stated he had no idea what the Respondents was doing in that time with regard to his letter of 31 May 2009. It seems to me, therefore, that the Claimant is not entitled to an extension pursuant to Regulation 15 his not reasonably being of the belief that the Respondent were pursuing a disciplinary procedure."

21. Mr Halliday contended that that decision was perverse and that the only conclusion possible on the facts was that it was reasonable for the Appellant to believe that a dismissal process was being followed. He said that the case was indistinguishable from Towergate London Market Ltd v Harris [2008] ICR 1200, in which the Court of Appeal had held that an employment tribunal had been wrong not to apply regulation 15 (1) (a) in what were, he submitted, very similar circumstances.

22. I do not accept that submission. The question of what it was reasonable for the Appellant to believe was (unlike the grievance issue considered above) a matter for the assessment of the Judge as a matter of fact. It was evidently her view that an employee who had been given a time limit of five days to appeal but had waited for ten weeks before doing so could not reasonably have believed that the mere lodging of a letter of appeal would initiate a disciplinary process. (It may also be material that any appeal under the statutory procedure would have to be initiated "without unreasonable delay" – see para. 12 of Schedule 2 to the 2002 Act.) I can see nothing perverse or irrational in that view. Towergate lays down no relevant proposition of law and is in any event distinguishable on its facts. In that case the employee within a few weeks of her dismissal for redundancy had a meeting, accompanied by her union representative, to discuss the basis of her selection. She had been sent further information. Following receipt of that information she had submitted a grievance complaining of her selection and claiming to be entitled to a meeting. I can well understand that the Court believed that it was reasonable for her to believe that a process was being followed: see in particular the succinct summary by Wilson LJ at para. 56 (pp. 1220-1). In the present case, by contrast, there had been no relevant communication between the Appellant and the Respondents until he sent his belated appeal letter.

23. Mr Halliday submitted that in the second part of para. 6.17 of the Reasons, where the Judge refers to the fact that the Appellant had had no reply to his letter and eventually had, in effect, to re-send it, betrayed a wrong approach. The crucial question is what it was reasonable for the Appellant to believe on 6 June 2009, which was only a week after his original letter was sent (assuming it was); and that at that fairly early stage the absence of a reply should have caused no concern. He also pointed out, on a similar point, that the Appellant's evidence that he had "no idea what the Respondent was doing" was in response to a question specifically directed to the position on 18 June, when he sent his second letter. I see some force in this argument. If the Appellant was entitled to expect that a disciplinary procedure was being followed as a result of sending his letter of 31 May it is hard to see how the absence of an immediate response would alter the position. But it is clear that this was a makeweight point. The Judge's first and main reason for her conclusion was that the Appellant could not reasonably expect that an appeal which was over two months out of time would trigger a process; and for the reasons which I have already given that reasoning seems to me unimpeachable. (I am of course aware, as no doubt was the Judge, that in the event the Respondents took no point on the lateness of the appeal when they eventually received it; but Mr Halliday accepted that that could not be decisive.)

24. It follows that the challenge to the Judge's decision that the Tribunal had no jurisdiction to determine the dismissal complaint fails.

(b) THE NON-DISMISSAL COMPLAINTS

25. The last of the specific pleaded acts of discrimination complained of, apart from the Appellant's dismissal, was on 5 January 2009. As explained at paragraph 2 (3) above, the claim form seems incomplete; but since the Appellant has never offered to supply any lost pages the Judge could only proceed on the basis of the pleading that she had.

26. On that basis the claim was of course presented outside the primary time limit. As I have said, the only route by which jurisdiction could be established is under the terms of regulation 15, and specifically limb (b) of para. (1) and para. (3). If the last act complained of was indeed on 5 January 2009 those provisions would not assist the Appellant, since he would have had to have lodged his grievance within three months of that date, i.e. by 5 April. But it was his case that the complaints in the ET1 were of an "act extending over a period" within the meaning of section 68 (7) (b) as interpreted in Metropolitan Police Commissioner v Hendricks [2003] ICR 530 (I will use the phrase "continuing act" as a shorthand), and that that period continued up to his dismissal on 5 March. Mr Halliday put it before me in alternative ways: either (a) that act of dismissal should be regarded as the final element in a continuing act; or (b) that, irrespective of the act of dismissal, the ET1 should be read as alleging a continuing act, in the sense of a continuing state of affairs, which came to an end only when the employment did. He accepted that there was an issue as to whether such acts did indeed constitute a continuing act; but he said that that issue could only fairly be decided at the full hearing, as is the usual practice following Hendricks. If, therefore, it was necessary, at least for the time being, to proceed on the basis that there was or might be a continuing act up to 5 March, the Appellant would be entitled to take advantage of regulation 15 (1) (b) if he had lodged a grievance before 4 June. It was accordingly crucial to establish whether the Appellant had in fact sent the letter of 31 May, and the case would have to be remitted to the Judge for a finding on that question.

27. Mr Mehrzad took the point before me that those submissions did not correspond to the way that the case was put below, having in fact been first propounded by Judge Clark at the preliminary hearing, and that the Appellant should not be entitled to advance them on appeal. In the draft of this judgment which I initially circulated to counsel I accepted that submission: in particular, I thought that it was unacceptable that the case should have to go back to the Judge for determination of an issue of fact – i.e. as to whether the letter of 31 May had been sent – that the Judge would have decided first time round if it had fallen for decision on the way the case was argued. However, Mr Halliday in his comments on the draft judgment submitted that I had misunderstood the position. It was necessary to distinguish between the two alternative ways of putting the case identified in the preceding paragraph. The Appellant had indeed argued before the Judge that he could rely on the dismissal as the final element in a "continuing act" (i.e. "alternative (a)"): what he had not argued, as he accepted, was that the Appellant could rely on a continuing act lasting beyond the last pleaded act even apart from the act of dismissal (i.e. "alternative (b)"). He contended that in my reasoning I had failed to appreciate that distinction. Mr Mehrzad responded to those comments, but I read his response not as challenging Mr Halliday's account of the distinction between the two arguments but as arguing that I had not failed to appreciate it. I deferred the planned hand-down so that I could consider the position properly.

28. It is not the purpose of circulating a draft judgment to counsel that they should attempt to re-argue points or correct errors in the reasoning. But where it appears that this Tribunal has simply misunderstood a point in the way alleged here I see nothing inappropriate in that being pointed out and the Tribunal – in this case the Judge – reconsidering the position if it thinks fit. I think I may indeed have been wrong in my understanding of how the case was put below – and, whether I was or not, it is unsatisfactory that the outcome of an appeal should depend on a point of this character where there is a real dispute. I have therefore concluded that I should consider both Mr Halliday's alternative ways of putting the case on their merits.

29. I take first alternative (a) – that is, that the Appellant was entitled to rely on his dismissal as the final element in an act extending over a period. I accept that the pleading, in section 5 of the ET1, that the Appellant's dismissal was "the culmination of months of racial discrimination" lays the foundation for such an argument. Whether it would succeed on the facts is another matter. It may well be strongly arguable that the Appellant's selection for redundancy (in what appears on its face to have been an entirely genuine redundancy exercise) is of a sufficiently different character from the kinds of incident complained of in section 6 of the claim form to be properly regarded as a distinct act. However, I think I have to accept that I do not know enough about the circumstances to be able to decide that point for myself. Thus far, therefore, I am with Mr Halliday. But Mr Mehrzad submitted that it cannot be the case that, in order to bring the "non-dismissal acts" within time, the Appellant was entitled to rely on an act, namely his dismissal, in respect of which his claim was out of time and the Tribunal had no jurisdiction. This is not altogether straightforward. I see the attraction of the argument that, if in the end the act of dismissal were held to constitute the final term in a continuing act, the "normal time limit" for the purpose of para. (1) would end on the date of dismissal, so that the three-month extension would also run from that date. But after careful reflection I do not think that that approach is consistent with the scheme of the Regulations. The structure of regulation 15 (1) requires a distinction to be drawn between acts of dismissal and acts other than dismissal, with different regimes governing the extension of the limitation period in either case. Even if the act of dismissal might otherwise form part of an "act continuing over a period", I believe that in this context it is necessary to observe the distinctions which are fundamental to the regulation and that the only acts which can be taken into account under limb (b) of regulation 15 (1) are acts other than dismissal.

30. I turn to alternative (b). I can deal with this briefly. I can see no basis for treating the Appellant as having complained of any act after 5 January 2009. No such act is pleaded, and there is no basis for inferring a continuing state of affairs after that date.

CONCLUSION

31. I dismiss the appeal on the basis that the Judge was right to hold that the Appellant's claims were out of time. It is a pity that the result of the appeal should depend on the technicalities of the 2004 Regulations. But I am bound to observe that I can see no real injustice in the outcome. While I need not doubt the sincerity of the Appellant's belief that he was unfairly treated by Mr Cornwell and Mr Billington, the case that that treatment was on racial grounds depends, as noted above, on bare assertion, and the viability of a claim of racial discrimination must be doubtful. Further, no such allegation was made until, at earliest, 31 May 2009; and no claim was presented in the Tribunal until August 2009, 5½ months after the Appellant's dismissal and over a year after the first of the acts of which he complains – in circumstances where no "just and equitable" extension was available.