Appeal No. UKEAT/0279/12/JOJ

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

                                                                                                              At the Tribunal
                                                                                                              On 14 September 2012

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR G NOVAK	APPELLANT

PHONES 4U LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR K CONROY
(Consultant)
K J Conroy & Co. Solicitors Ltd
38 George Street
Birmingham
West Midlands  
B3 1QA	
For the Respondent	MR J BOYD
(of Counsel)
Instructed by:
Seabury Beaumont LLP
17 St Ann’s Square
Manchester 
M2 7PW	

SUMMARY

RACE DISCRIMINATION – Continuing act

The Claimant complained of entries made on Facebook by work colleagues, said to be acts of discrimination on the grounds of disability and nationality.  He was found to be out of time.  The Employment Judge’s decision at a PHR in part was reversed.  The Employment Judge erred in holding the entries were not linked by subject matter, people and time, so as to create a continuing act.  Remitted to a full merits hearing.

HIS HONOUR JUDGE McMULLEN QC 
Introduction
1.	I will refer to the parties as the Claimant and the Respondent. This is an appeal by the Claimant in proceedings at a PHR to determine whether claims about three matters had been made in time.  Employment Judge Woffenden at Birmingham decided that certain issues could not be resolved by her and should go to the full hearing of the Claimant’s case.  These are what are broadly described as the case against the Respondent for omitting to take various steps to avoid the discrimination which he alleged occurred.

2.	The case proceeds. However, certain parts of the claim were effectively dismissed on the grounds that there was no jurisdiction because they were made out of time.  The Claimant has been represented by Mr Conroy, a consultant and Mr Seabury, a solicitor for the Respondent appeared at the Employment Tribunal but the Respondent now has the advantage to be represented by Mr Boyd of counsel. 

The issue
3.	The essential issue was to determine the time point. Time for disability and race discrimination begins to run from the date of the commission of the tort and lasts for three months but there is a just and equitable extension.  The Judge decided not to extend time for the claims to be made and there is no sustained attack on that decision in relation to the first two claims, which is essentially one of fact and discretion.  The substance of the claims is that the alternative view of looking at the offensive acts was that they were of a continuing nature, in which case time begins to run at the end. Where there has been an omission time begins to run when the person responsible does an act inconsistent with the omission.

The facts
4.	I will be brief about the facts because there has been no determination yet.  The purpose of the PHR was, I hold, to form a view as to whether there was a good arguable case capable of being put to the Employment Tribunal, see for example the judgment of HHJ Serota QC and his examination of all the authorities in Pugh v The National Assembly for Wales UKEAT0251/06/DA at paragraphs 45, 46 and 47.  Whether it is described as a good arguable, or a prima facie, case does not really matter. The point is the Claimant should show that there is something to be heard in support of the assertion that there is a continuing act.  The Judge heard argument on the point but it seems to me decided the issue against a higher standard set against the Claimant that he had to show. 

5.	The familiar background to this workplace dispute is comments made by colleagues on Facebook.  Facebook is social networking internet tool; it enables people, all of whom - there are now 1 billion - are self publicists seeking to explain themselves and to share information with others.  Sometimes the information is shared with friends who are closely confined and who have access to the site only by permission, but sometimes the comments are made to the world. There are different settings and in this case the primary Facebook owner, Dean Watkins, an employee, used the open public network.  

6.	The sad circumstances which provoke this case are that the Claimant, who was manager of the Respondent’s cell phone store in Solihull, fell down the stairs at work on 26 February 2010 and he has been absent from work ever since.  He makes claims under the Disability Discrimination Act that was then applicable and it is conceded by the Respondent that he had a physical impairment which includes post-concussion syndrome.  He is an American and makes claims also that he has been discriminated against by reason of his nationality and national origin. 

7.	The first claim was commenced on 9 September 2010.  A second claim was commenced on 14 December 2011.  The nature of the claim is the criticism by the Claimant of his fellow employees for deriding his industrial accident on the one hand, and against the Respondent for failing to take such steps as would be required under the DDA or the Race Relations Act and/or the Equality Act to stop what he regarded as a discriminatory state of affairs. There are also claims of harassment and victimisation.  The allegations are four-fold and they are conveniently set out in Mr Boyd’s skeleton argument as a table.

8.	The first relates to entries on Dean Watkins’ Facebook between 31 March and 21 May 2010; these remained on site until 9 July 2010.  Contributing to the site, making comments to which the Claimant takes exception, was a substantial group of employees.  There is a way of registering on Facebook your approval of what is said; it is called a “thumbs-up” shown by the icon of a raised thumb. A number of people agreed with what Dean Watkins was saying by registering their thumbs-up.  This sequence went on for the above period.  The Claimant became aware of it on 12 June 2010. 

9.	The Judge said that the correct test was to look at whether these constituted a continuing act extending over a period of time. She came to the conclusion, against which there is no appeal, that the comments were connected, that they constituted an act extending over a period of time initiated by Dean Watkins. All of the people who contributed were employees of the Respondent. They were closely linked in time and subject matter, which the Judge identified as the Claimant’s fall down the stairs.

10.	As she held, they were not unconnected or isolated specific acts.  The Judge considered Virdi v Commissioner of Police of the Metropolis and Another [2006] UKEAT/0373/06 and distinguished the reasoning in that as being here a continuing act.  The Judge correctly, I hold, addressed herself to the date of knowledge, for the judgment of Elias J in Virdi at paragraph 25 makes clear that the tort is completed on its being done rather than on its being communicated to the victim.  Although the Claimant understandably puts forward the date of his knowledge, time begins to run under the statute from the date the act occurred and from the end of a continuing act, and from the date of acting inconsistently when an omission is alleged: see Afolabi [2003] ICR 800 CA. The Judge concluded that the sequence of comments made by individuals all constituted a continuing act throughout the whole of the period 31 March to 21 May. It was not until 9 July that they were taken down but it does not appear that the Judge found that date is the end of the period, for otherwise the claim would have been in time. The Judge refused to extend time.

11.	Secondly, during that period there was the defacement of a safety sign at the workplace in April 2010 by J P Taylor, an employee.  This defaced sign was made known to the Claimant on the same date as the Facebook entries, 12 June 2010, and it was not taken down until the first week in August.  The Claimant took exception to this: it was, he says, ridiculing his fall down the stairs.  The Judge refused to exercise discretion to extend time.

12.	The third allegation relates to Facebook entries between 26 and 28 July 2010, of which the Claimant became aware on 26 July.  An amendment was allowed to introduce that matter. There is no appeal against that.  The claim was in time. The Judge decided that this second sequence on Facebook was not a continuing act linked to the first. She said this:

“17. Were they connected to the previous comments, the last one of which was made on 21 May 2010?  I conclude that, although those comments were linked to each other (they were an exchange between Dean Watkins and another individual and responded, on the claimant’s case, to the claimant’s grievance) they do not involve the same individuals as those made from 31 March 2010 to 21 May 2010.  The subject matter is different and there was a break of nearly seven weeks between them and the last group of comments.”

13.	Before me, Mr Boyd has fairly accepted that the Judge is simply wrong in her conclusion that this did not involve the same individuals - they were Dean Watkins and Daniel Williams.  He also accepts that a reference to Captain Controversy is to the controversy which was stirred up by Dean Watkins in initiating the Facebook entries on 31 March 2010.  A reference to Big Brother is a reference to the Respondent which was keeping an eye on matters and is an exchange between Mr Williams and Mr Watkins.  

14.	The other distinction she makes from the Facebook sequence is that the subject matter is different. With respect that cannot be right. Since it is accepted that the controversy Dean Watkins is owning up to is the one that he started, and the grievance which the Claimant lodged, the subject matter is not different, it is the same.  

15.	The question is whether the Judge was right in not linking the two sets of Facebook entries into one continuous act.  In my judgment, in the light of those errors, this judgment cannot stand, for as a matter of agreement now, the individuals are the same as those who contributed to the earlier Facebook entry and the subject matter is the same; it is by implication the Claimant’s fall down the stairs.

16.	There was a break of nearly seven weeks between the two sets of comments. That of course is a matter of fact for the Judge to consider. But I cannot say she is unarguably right after the errors which I have identified. The time span is 31 March 2010 to 28 July 2010, 17 weeks. The period of discontinuity is seven weeks. The subject matter and the people are connected. In my view this gap in the circumstances did not mean the treatment the Claimant complains of was not continuing.

17.	Those findings shed new light on the defacement of the safety notice. They must mean that it was part of the continuing act bracketed between the Facebook entries. The Judge did not need to consider discretion as on this footing the complaint was in time.

18.	I then turn to the fourth allegation which is a photograph J P Taylor took of himself looking as though he has fallen down the stairs in precisely the position that the Claimant was in.  This was put on his Facebook site on 10 March 2010 and was taken down on 3 November 2011 when the Claimant became aware of it just before he launched his second claim form.  Mr Conroy argues that the continuing act requires a court to stand back and look at the matter holistically. It begins with 10 March 2010, since it is as he puts it, the beginning of the humiliation of his client, and goes on, he says, until it was taken down.

19.	In my judgment the solution to this matter lies in an assessment of the five allegations.  As to the photograph of J P Taylor, I accept Mr Conroy’s contention that this is the beginning of the events and it is connected to the Facebook entry, so there is linkage between 10 and 31 March. Examination of the Judge’s reasoning in paragraph 18 does not fit the evidence: there were the principal actors and subject matter. The fact it predates the 31 March entry does not mean it is not connected and continuing. If so, from what I have said above, the claim form including this complaint made on 9 September 2010 is arguably in time.   Applying the Judge’s correct approach of looking for a connection between individuals, subject matter and timing, this subject matter is the same and the individuals are the same for J P Taylor was the one who caused the defacement of the safety sign.  There is reference to Mr Hussain and Mr Paddy who both contributed to the Facebook entries that began on 31 March 2010. So when the Judge holds that there is no link between these, she failed to pay attention to the identity of the individuals. She again says the individuals are different.  She says the Facebook entry is not that of Dean Watkins. That is true, but it was uploaded onto other websites and so again, the Judge has erred where, as a matter of record, individuals were the same.

20.	On the other hand, if the 10 March 2010 entry was a one-off event, or a version of a continuing act from 10 March to 26 July 2010, not discovered until 2011, application of the principles in Afolabi ought to point to a just and equitable extension of time to allow the second claim form to be accepted. This matter will be dealt with at the Employment Tribunal. Of course, if the Employment Tribunal hears and needs to decide the interesting point in paras. 22-23 below, and decides time does not run until the entry is taken down, the second claim would be in time.

21.	That means that the question is whether the claims were in time.  It is common ground that if time runs from the second sequence of Facebook entries the first claim is in time.  In my judgment the Judge erred in failing to link the two or at least to consider carefully the link between the two.  The Claimant’s case is that he was involved in “an ongoing matter” which was being investigated by the Respondent when he complained on 26 July 2010. If it is right that the same people were involved, it is arguable that there is a continuing act and time does not begin to run until the last entry on Facebook was posted; that is, at the latest, 26 July 2010 and the claim would be in time.  

22.	One of the interesting questions in this case is whether the act continues throughout the period when a Facebook entry is up.  It seems to me that the Judge made a decision about that.  She was prepared to hold that a comment made by any individual stayed on the website during the course of the sequence when the conversation was continuing with “friends” adding to it, here from 31 March to 21 May 2010. There is no challenge to that.  The issue which she sent to a hearing is whether the omission of the Respondent to do anything about this during this time was made out by the Claimant.

23.	Thus, it is not necessary for me to make a decision on whether leaving a notice up itself constitutes a continuing act for the time it is visible, whether electronically on Facebook or physically on the office wall (the defaced safety notice).  If it does, all the five points in the two claims are in time. It is sufficient to resolve this appeal to say that the Claimant has a good arguable case that the events of which he complained were one continuous act up until 26 July 2010 when the last posting occurred and therefore the first claim is in time.  Whether there is a further extension to 28 July 2010 or 3 November 2011 is a matter which can be dealt with by the Tribunal if it necessary to decide it.

Conclusion
24.	My conclusions are:  
a.	The first claim was in time in respect of the second sequence of Facebook entries.
b.	The first claim was in time in respect of the first sequence of Facebook entries and the April defacement.
c.	It is reasonably arguable that the Claimant has made out a prima facie case that his second claim for the 10 March 2010 Facebook entry is in time. 

25.	It is accepted that the point about the corporate Respondent’s omission to act is going to a hearing; so will these.  It will be for a Tribunal, (and I think this must go before a three-person Tribunal because it contains allegations of detriment) to decide. I set aside the judgment of the Judge as to the jurisdiction.