Lyfar v Brighton & Sussex University Hospitals Trust
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER,Lord Justice Hughes,Lord Justice Thorpe |
| Judgment Date | 14 November 2006 |
| Neutral Citation | [2006] EWCA Civ 1548 |
| Docket Number | Case No: A2/2006/0309 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 November 2006 |
[2006] EWCA Civ 1548
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Employment Appeal Tribunal
His Honour Judge McMullen QC
UKEAT/0651/05/ZT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Hooper and
Lord Justice Hughes
Case No: A2/2006/0309
Karon Monaghan and Mark Afeeva (instructed by Messrs Webster Dixin Llp) for the Appellant
Clive Sheldon (instructed by Messrs Dmh Stallard) for the Respondent
Dr Vivienne Lyfar appeals against a decision of the Employment Appeal Tribunal ("EAT") , HHJ McMullen QC, sitting alone, dismissing her appeal from the decision of an Employment Tribunal ("ET") Regional Chairman, Mr R Peters. The decision of Mr Peters was made at a Pre-Hearing Review ordered in accordance with the Employment Tribunal Regulations 2004, regulations 10, 14 and 18. The Rules give wide powers of case management and provide for the determination of preliminary points and striking out.
The appellant gave evidence at the Review and submitted documents, including what was treated as a witness statement prepared by her union representative. The respondent called no evidence.
The appeal concerns section 68 of the Race Relations Act 1976 (the "Act") which prescribes a limitation period for complaints. Section 68 provides:
"(1) An employment tribunal shall not consider a complaint under section 54 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;
…
(6) A court or tribunal may nevertheless consider any such complaint … which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(7) For the purposes of this section
…
(b) any act extending over a period shall be treated as done at the end of that period;
…"
The three month period began on 25 November 2004. The seventeen complaints covered the period summer 2004 to a date after November 25. The appeal is particularly concerned with the words in sub-section 7(b) "any act extending over a period" and the application of sub-section (6) . It is the appellant's case that the conduct about which she was complaining constituted "an act extending over a period" which ended after November 25. Alternatively she submitted that under sub-section (6) it was just and equitable to consider her complaints. Mr Peters allowed only five of the seventeen complaints to be heard dismissing the others as being out of time and deciding that it was not just and equitable to hear them.
Separately, another Employment Tribunal Chairman decided that four of the remaining five grounds left by Mr Peters should be dismissed because the Claimant did not activate the grievance procedure in accordance with the 2002 Act and Regulations prior to presenting the claim. Her appeal against that was unsuccessful. The Appellant, subject to the outcome of this appeal, is left with one of her 17 complaints to be tried at an Employment Tribunal. The remaining ground is: "The failure by the Respondent to deal with the Claimant's grievance in good time or at all."
In the preamble to her claim the appellant wrote:
"My claim of discrimination relates to the way in which BSUH Trust conducted an investigation into the alleged allegations of bullying and harassment of … AR against me as the supervisor of her BSc project"."
I take a brief statement of the facts from the judgment of HHJ McMullen:
"The facts can only be tentatively stated because there has, of course, been no trial. The Respondent is an NHS Trust on the south coast of England. The Claimant has (since 1985) been, and still is, employed as a Principal Clinical Bio-Chemist at a salary of over £41,000 a year. She is black Afro-Caribbean. The Tribunal found as follows:
'2. An internal complaint was raised against the Claimant by another member of staff (AR) . The complaint was that the Claimant had bullied and harassed her.
3. That complaint was the subject of an internal investigation, which came to the view that there was sufficient to warrant disciplinary action against the Claimant.
4. As a consequence, the Claimant attended a disciplinary hearing on 11 October 2004. The outcome of that hearing was that the disciplinary charges against the Claimant were dismissed.
5. Following that, the Respondent's General Manager, Judy Piper, endeavoured to arrange a meeting with the Claimant to discuss issues arising as a consequence of the disciplinary action. No such meeting took place.
6. On 9 November 2004, the Claimant wrote to the Respondent's Director of Personnel registering a grievance as to the conduct of the disciplinary process.
7. The Claimant was informed of the outcome of that grievance on 20 January 2005.
8. On 24 February 2005, the Tribunal received, by facsimile transmission from solicitors acting on the Claimant's behalf, a Tribunal Claim Form dated 27 January 2005 making a series of complaints of racial discrimination'."
The ET categorised the complaints into four groups. In the words of HHJ McMullen:
"The claims span four periods. (1) An investigation which found that there was a case for the Claimant to answer in August 2004. (2) The hearing of disciplinary charges on 11 October; they were dismissed. (3) What Judy Piper did after the disciplinary hearing. (4) The handling of the Claimant's grievance submitted on 9 November 2004. "
The ET said this about the seventeen complaints:
"15. The first category was of acts of less favourable treatment all relating to the actions/omissions of the investigation team. Apart from the first of those allegations, they were of matters occurring over a period ending in August 2004 when the investigation team produced its report. Those complaints are:
First alleged act of less favourable treatment
The Respondent sending the letter of 17 May 2004 (inviting the Claimant to address the investigation team) to the wrong address, thereby denying the Claimant the opportunity to provide the investigation team with her version of events before it decided that she had a case to answer.
Second alleged act of less favourable treatment
The Respondent's failure to make any or any reasonable efforts to ensure that the Claimant had an opportunity to address the investigation team before it decided whether she had a case to answer.
Third alleged act of less favourable treatment
The consideration by the investigation team of the Claimant's activities with the Black and Ethnic Minority Network.
Fourth alleged act of less favourable treatment
The acceptance by the investigation team of the uncorroborated evidence of AR despite the absence of any or any reasonable grounds for doing so.
Fifth alleged act of less favourable treatment
Pursuit by the investigation team of lines of enquiry during its interviews with potential witnesses that were irrelevant to AR's complaint to the intent of unearthing matters which would support the investigation team's belief that the Claimant had a case to answer.
Sixth alleged act of less favourable treatment
The deliberate or negligent misinterpretation by the investigation team of evidence adduced by witnesses.
Seventh alleged act of less favourable treatment
Repeated unreasonable delays by the investigation team to respond to the Claimant's correspondence throughout the period of the investigation.
Eighth alleged act of less favourable treatment
The failure by the Respondent to pay any or any adequate attention to its own policy in respect of complaints against staff on 2 and 14 July 2004 and failure to complete the investigation timely.
Ninth alleged act of less favourable treatment
The conduct of the investigation team's informal proceedings in a formal manner.
Tenth alleged act of less favourable treatment
The production of a report by the investigation team in August 2004 that found that the Claimant had a case to answer.
16. The second category of acts of less favourable treatment related to the disciplinary hearing. Those alleged acts took place on or by 11 October 2004.
Eleventh alleged act of less favourable treatment
The failure by the Respondent to provide the Claimant with copies of the meeting notes collated by the investigation team causing a detriment impact on the Claimant's ability to defend herself against AR's complaints.
Twelfth alleged act of less favourable treatment
The failure by the Respondent to require the Claimant's deputy to attend the disciplinary hearing on 11 October 2004, despite the fact that the investigation team knew that the Claimant's deputy would provide testimony that would indicate that AR's complaints against the Claimant were unfounded.
17. The third category of acts of less favourable treatment related to the actions of Judy Piper. The Claimant asserts that such events happened on the dates in October, November and December as set out in the thirteenth alleged act of less favourable treatment, or is continuing discrimination. The Claimant put the acts of discrimination in the following terms:
Thirteenth alleged act of less favourable treatment.
The intimidation of the Claimant by Judy Piper after the disciplinary hearing had dismissed the charge against the Claimant in endeavouring to arrange meetings in October, November and December.
Fourteenth alleged act of less favourable treatment
The failure by Judy Piper to inform the Claimant's line manager or the Pathology Manager of the outcome of the disciplinary hearing.
Fifteenth alleged act of less favourable...
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