[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Murray v. University of Edinburgh [2003] UKEAT 0020_03_2908 (29 August 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0020_03_2908.html Cite as: [2003] UKEAT 20_3_2908, [2003] UKEAT 0020_03_2908

[New search] [Printable RTF version] [Help]

APPEARANCES

 

 

For the Appellant	Ian Kennedy, WS Solicitor 13 Great King Street EDINBURGH EH3 6QW
For the Respondents	Mr N Maclean, Solicitor Of- Messrs Anderson Strathern Solicitors 48 Castle Street EDINBURGH EH2 3LX


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employee against a finding of the Employment Tribunal that her application, making a claim under the Disability Discrimination Act 1995 ("The Act"), was out of time.
2. The case has a long and complicated history as regards the facts but, it is sufficient for us to record, that the employee eventually went off work alleging mental stress, after various periods of sick leave, on 8 January 2001 and did not return prior to her resignation in July 2002. Over that period there were a number of attempts to resolve the matter initiated both by her solicitor and her trade union.
3. It is sufficient for our purposes to record that for the purposes of sub-paragraph (3) of paragraph 3 of the third Schedule to the Act, the Tribunal determined that, if there was an issue of discrimination, it crystallised when the employee's entitlement to sick pay ceased. That was some 10 months before the claim was made to the Tribunal on 11 June 2002.
4. Mr Kennedy, appearing for the appellant, submitted that it was nothing to the point as to when sick pay entitlement was terminated since it was a contractual matter, quite separate from any alleged continuing act of discrimination.
5. Mr Maclean, appearing for the respondents, submitted that, properly understood, the terms of the paragraph of the Schedule, if relating to an omission, could only crystallise if such was continuing when the period in question came to an end, and, that, accordingly, the application was premature. On the other hand, he submitted, that if sick pay was a relevant part of the issue as to whether or not the employee knew that she was being discriminated against, then the Tribunal was entitled to assume that that was the crystallising point and that the claim had to be brought within 3 months of that date.
6. It is important to note, that the relevant paragraph is, in our opinion, concerned with the long stops and not with what may have happened prior to the determination of the relevant period. Omission can be a continuing act if it can be properly categorised as such and we do not think that subparagraph (4) of paragraph 3 does any more than focus a time when an omission may be held to have taken place. It does not, in our view, deal with continuing omissions.
7. In this case, it is our clear view, that if there was an act of discrimination, and, that is a real question in terms of whether or not reasonable adjustments were being offered, then it was a continuing one throughout the whole period of employment and it would, therefore, be illogical to deny the appellant the right to bring her claim, even before her employment period had terminated. Properly understood, in our opinion, the three-month period would only start to run when she resigned. It being essential to bear in mind that the claim is one for discrimination, which we are not for one moment suggesting that is made out, that would be a matter for evidence.
8. In these circumstances, purely on the issue of time bar, we consider that the Tribunal misdirected itself by focussing on the issue of sick pay. It should have recognised that there was continuing act or omission in the sense of what is being alleged, occurred throughout the relevant period of employment, to its termination.
9. In these circumstances this appeal will be allowed and the matter remitted back to the Employment Tribunal for a full hearing.