Appeal No. UKEAT/0386/11/SM

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

		At the Tribunal
		On 19 January 2012

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)

MR G L CHARLES	APPELLANT

TESCO STORES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR G L CHARLES
(The Appellant in Person)	
For the Respondent
	MS R THOMAS
(of Counsel)
Instructed by:
Squire Sanders & Dempsey (UK) LLP
2 Park Lane
Leeds
LS3 1ES

SUMMARY
RACE DISCRIMINATION – Continuing act
PRACTICE AND PROCEDURE – Preliminary issues

A self-represented party complained that an Employment Judge had not addressed his claim that within 3 months prior to his lodging proceedings he had agreed compensation (or had an offer of compensation) which was revoked/withdrawn/broken by the employer, and that this was an act of discrimination against him.  The EJ should thus not have ruled his earlier complaints out of time, since this was the last in a series of linked events.

Since none of the hearing had (it appeared) concerned the allegation that the Respondent had welched on or had withdrawn an agreement, the EJ was held entitled to hold as she did.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.	The sole issue in this appeal is one of fact.  It is whether the Tribunal was entitled to come to the conclusion that a claim brought by the Claimant was out of time.  That meant the Tribunal had to identify the date or the latest date upon which the acts complained about by the complainant as constituting discrimination against him had been committed.  That in turn led to a need to identify what it was that the Claimant was complaining about.  Because the jurisdiction of this Tribunal arises only if an error of law can be demonstrated, the error of law has to be judged by what the Employment Tribunal was entitled to make of the allegations upon the basis of the material before it and the representations made to it.

Background
2.	The circumstances giving rise to this appeal are these.  The Claimant was a forklift truck driver for Tesco.  He complained over the years about conduct toward him by a fellow employee.  In June 2009 he lodged a grievance against a different fellow worker.  His grievance had been resolved by the employer applying procedures towards that other, and not, he averred, by applying those procedures to him.  The claim that he brought, which is the subject of this appeal, was one which was numbered 1201994/10, being a claim that was made in an originating application that was received on 29 October 2010.  The Tribunal concluded that the complaints made in the claim were all in respect of actions that had taken place on or before 4 June 2010, and therefore the complaint was out of time.  The case before me is that the Tribunal should instead have adopted the date of 17 August 2010.  The Claimant says that he had and made a complaint about events on that day; accordingly, that complaint was within time, and his claim should have been heard.

3.	To understand how this difference arose, it is necessary to retrace something of the procedural history of the case.  The Claimant put his ET1 in in handwriting.  His handwriting is not the easiest to read; a typescript, however, has been provided.  He expressed his complaint in terms that, again, may not have focussed attention upon that which he actually had in mind as his complaint.  He legitimately tells me that others have been busy telling him what his complaints were, when he is the one person who knows, but the focus of this court’s attention has to be upon what a Tribunal would and should have understood from the material before it, since it could not be expected to know precisely what was in the mind of the Claimant except by what it read, heard and saw.

4.	In the ET1, section 5.2, the Claimant set out the history of delay in resolving a grievance that he had first made on 16 June 2009.  It is a matter of history that the first‑stage process under the grievance procedure came to a conclusion on 4 June 2010.  It should under the procedure have been resolved within ten days; this was more than ten months.  The Claimant complained that the delay was a reflection of the fact that he is black.  He complained that it took 14 months before the reconvened second stage on 17 August 2010 was found in his favour, because of the length of time it had taken to hear the grievance and all the findings.  The reference therefore to 17 August 2010 in that paragraph emphasises the delay that the employer had taken in dealing with the grievance at all, and in particular stage 1.  The complaint went on, “I am complaining of the events leading up to this, specifically the 17th-08-2010 meeting.”  That is a reference to matters that precede 17 August; it does not tie those events to any particular date.  Nothing is said about the events leading up to 17 August apart from the complaint about delay and, it appears from other material, a complaint that a co‑employee had been dealt with in a way in which he, the complainant, was not dealt with, and vice versa, the other employee being white.

5.	The next reference within the ET1 to 17 August 2010 is in paragraph 7.1.  This describes how the senior manager who conducted stage 2 of the grievance procedure and who, as I have recorded, found in favour of the Claimant, upholding his complaint of excessive delay and other matters that he had drawn attention to under the Dignity at Work procedure dealt with matters.  He said:

“Neil Harvey [the manager] found on 16th-7-2010 and then on 17th-8-2010 Tesco […] was guilty of negligence, abandoning procedures which leads to favouritism, persecution and discrimination and there was no excuses whatsoever to conduct it this way when there are set guidelines to be followed and adhered to […].”

6.	That does not complain about events that took place on 17 August; it identifies 17 August as the date upon which Neil Harvey confirmed a view about what had happened that the Claimant held.  However, the claim went on:

“That is why I am asking to be heard at Watford due to the biasness and actions conducted by Bedford Judge Moore which I reported to Miss Vivienne Gay a Watford Judge who was very very good, and Nottingham’s Judge Joan K Macmillan and then the EAT.  I just gave them the facts undiluted truth.  So this employment claim is the 17.08.2010 meeting and outcome.  I put in a Dignity at Work grievance on the 16.6.2009 and over sixteen months later it is not completed it is still at stage 2 out of 3 stages, yet every stage should be a ten days maximum allowances - yet Chris Andrews, the main protagonist in my grievance has not been interviewed at all for the claims I made against him and my several witnesses was interviewed over seven months later.  Tesco set guidelines procedures and rules has not been followed and breached time after time by the personnel managers […].”

7.	He goes on to identify them.  There is nothing there said about any particular event on 17 August 2010 about which the Claimant was complaining, but it is not to be disputed that he mentioned the date and did so in the terms that I have recorded.

8.	The claim was one of three cases that came before Employment Judge Bloom at Bedford on 2 March 2011.  He described the fate of two earlier claims that the Claimant had made about his employment circumstances and identified the three claims that were by then outstanding.  He ordered that those three matters should all be considered at a Pre‑Hearing Review, for which he gave listing directions.  The second of the claims was the one to which this appeal relates.  The way in which Judge Bloom dealt with the complaint is material.  He said this at paragraph 5:

“The allegations arise in relation to a grievance lodged by the Claimant on 16 June 2009.  Those grievances are against a fellow employee, Mr Christopher Andrews, (a white man).  Mr Andrews apparently gave evidence in relation to the claim heard by Employment Judge Moore.  It is alleged that after the hearing, Mr Andrews engaged in behaviour, which it is said, amounted to further acts of racial discrimination which have not, as yet, been particularized.  The Claimant’s grievance in relation to this matter was heard at a meeting on 09 February 2010.  It is the Claimant’s case that the outcome of that grievance is yet to be conveyed to him.  This amounts to an ongoing act of discrimination.  The Respondent disagrees and states that the outcome of that grievance was conveyed to the Claimant on 4 June 2010.  As a result not only does the Respondent deny the Claimant’s claims on merit but it also states that this second claim has been presented to the Employment Tribunal out of time.  Any claim for racial discrimination arising in these circumstances should have been presented on or before 03 September 2010.”
 
9.	He ordered that the Claimant should prepare a detailed schedule of all the factual allegations that he made in relation to all three claims, specifying the date upon which it was alleged the act of discrimination took place and the names of the individuals against whom he made the complaints.  The parties were in addition to agree a chronology by 13 April 2011.  After that the Pre‑Hearing Review was to be listed; it was to take place on 20 May 2011.

10.	At that hearing the Claimant was represented by counsel.  He says to me today that counsel was unprepared for the case.  He spoke to Mr Charles for the first time in the waiting room before the hearing; he did not know the case and had to ask questions about it.  It is plain from what Mr Charles says that he considered that counsel had not properly articulated what it was that he was really complaining about in respect of the events of 17 August.  The way in which the complaint was put, as described by Judge Bloom, for whose conduct on this occasion the Claimant has no criticism, does not accord with the way in which he now advances his case.

11.	In accordance with the direction the solicitors then acting for the Claimant prepared a schedule of factual allegations and a chronology.  It deals with all three cases, but the passage dealing with this case identified the relevant dates.  Amongst those was 4 June 2010, when, it is said, Mr Charles was made aware that Mr Andrews had not been interviewed as part of the grievance investigation.  It mentions 17 August as the date upon which Mr Charles was notified in writing of the preliminary findings of the stage 2 hearing, in which his additional complaint about the time it had taken to deal with the grievance was upheld.  Thus from the chronology it might appear that Mr Charles’ own legal representatives were putting forward two complaints: the first was that there was a disparity between the way in which he, Mr Charles, had been treated and the way a white comparator, Mr Andrews, had been treated; and secondly, that he was complaining about the excessive length of time that it had taken to deal with stage 1 of his grievance.

12.	The allegations are indeed made clear, as the Employment Tribunal had directed, in bold italic.  There are two of them.  The first relates to delay, and the second to the way in which his grievance was dealt with less favourably than that of Mr Andrews, reflecting, therefore, the chronology.  Nothing was said about any further complaint.  Nothing was said about any events that took place on 17 August.  As to that Mr Charles tells me that he never saw that document.  It was one that was completed by his solicitors; it did not represent his case.  He had told his solicitors, “No, no, no - that does not represent my case”; they did not come back to him.  The chronology and the allegations they had identified, were nothing to do with him; it had not been done in his interests.

13.	About two weeks prior to the hearing with which this case is concerned, the solicitors, in Mr Charles’ words, “dropped” him.  They had been solicitors engaged through the union, USDAW.  It followed that only a short while prior to the hearing the Claimant was left on his own, inexperienced save for the fact that he had had previous experience of Employment Tribunal proceedings, to deal with a Pre‑Hearing Review at which the Tribunal would consider the future conduct of the case and, amongst other things, would consider whether or not the claims had been brought within time, such that the Tribunal had jurisdiction to consider them at all.

14.	When the Claimant came to the Tribunal on 20 May he found himself listed before Employment Judge Tribe.  She described in her decision that she had heard the Claimant’s evidence and had a bundle of documents that extended to 397 pages in length.  When the Claimant came to give evidence it appears to be common ground before me that he found himself asked to read a statement as though it were his.  This had been prepared for him by his former solicitor.  Since it became apparent to the Employment Judge as he began to read the statement, as was the practice adopted, that he was not very familiar with it, she enquired if he had ever seen it before.  He said that he had not; it was not signed by him.  He says to me he said it was poppycock, and it should not be put in.  The Respondents say, and support what they say by a contemporaneous note taken by Ms Martin, the solicitor who represented them on that occasion, that the Employment Judge invited the Claimant to read the statement as a base from which to point out any respect in which he thought it was inaccurate or needed to be expanded.

15.	A copy before me has handwriting on it, which is the solicitor’s handwriting making her notes of what she identified as differences he identified between the original statement and what he was now saying, which she of course would require in order to cross‑examine him.  The statement, representing therefore the solicitors’ record of what had been said to the Tribunal by him, identified the complaints in these terms at paragraphs 10‑12:

“10. In addition to my original complaint about Chris Andrews I also complained about the length of time that it had taken for the Company to deal with my grievance and Mr Harvey upheld my grievance.  The preliminary feedback came in the form of a handwritten letter on the 17th August 2010 and I had a formal feedback letter on the 19th August 2010.
11. I was concerned that not only had it taken so long for my grievance to be heard (particularly when compared to the speed with which Mr Andrews grievance was concluded) but also that Mr Andrews was not interviewed as part of the grievance process which I believe was the first thing that ought to have been done.
12. I felt that I had been discriminated against by the company in respect of the grievance that I had raised and that this was the reason that they had not dealt with it in a proper manner.”

It went on to express his belief that he had been less favourably treated than Mr Andrews.  

16.	The solicitors did not draft any further complaint about matters that had happened on 17 August.  However, what the Claimant says is this.  What happened, and the reason for his focus upon 17 August, was that Mr Harvey found in his favour.  He, the Claimant, together with his union representative, then entered into negotiations with Mr Harvey as to a sum of compensation in recognition of the excessive delay that there had been in dealing with the grievance that the Claimant had raised.  He complains that a sum was agreed, and that within an hour Mr Harvey, who had reported the matter to more senior management at Tesco, had been told that no compensation could be offered because there were ongoing proceedings between the Claimant and Tesco before the Employment Tribunal.  Mr Charles has described what occurred as an agreement, or alternatively as something being taken off the table (which might suggest there was no concluded agreement but an offer), and, in a skeleton argument received in this Tribunal on 5 January 2012 at paragraph 11, he says, “The offer of compensation was removed from the table after further discussions […]”.

17.	That there was some reference before the Judge to there having been settlement discussions is plain from the fact that Ms Martin apparently indicated, and accepts that she indicated, to the Employment Judge that any reference to an offer should not be considered by the Tribunal because without prejudice offers should not be referred to by a party.  That was of course to adopt the view that there had been no concluded agreement based upon an acceptance of the without prejudice offer, which, I am bound to say, remains unclear to me one way or the other as a matter of fact and would require a factual finding that I am not in a position myself to make.  It thus appears that something was said, but in that general context, by the Claimant about 17 August; otherwise, it was simply a date upon which matters confirmatory of the justice of the Claimant’s complaints were identified by a senior manager in the employment of the employer, thus lending force to the complaints that he was making.

18.	When the Judge came to consider what had been said to her and the submissions that had been made, she said this:

“4.8 With regard to the second claim [that is, the one with which I am concerned], the Claimant’s complaint is about the length of time that it has taken for the Respondent to respond to his grievance against Mr Andrews.  The Claimant submitted his grievance on 16 June 2009, a copy of which is at page 202 of the bundle.  The grievance is specifically in response to a grievance submitted against him by Mr Andrews […].
4.9 The Respondent commenced an investigation which was without doubt delayed, the delay not being entirely the fault of the Respondent as the Claimant had a period of sickness absence of some four months and holidays also intervened.  On 04 June 2010, the Claimant attended a resumed grievance meeting at which he was orally informed of the outcome.  […]”

19.	There is no reference in what the Judge said to any complaint about the presence of absence of an agreement and about the withdrawal of an offer that had been made only a matter of an hour beforehand to him.

The appeal
20.	It is on that basis that I am invited to conclude that the Judge was in error of law.  She should have, it is said, but did not take into account that the Claimant’s complaint was about what had actually happened on 17 August.  She wrongly regarded it as limited to matters of which the Claimant was aware before 4 June.

21.	The Respondent, through Ms Thomas, submits that that was exactly the complaint made by the Claimant to the Tribunal; that is, that no complaint was made to the Tribunal that could properly be understood by it as relating to the withdrawal of the settlement on 17 August.  The version put in her skeleton argument at paragraph 15 is that in the course of submissions before the Tribunal the Claimant twice referred, though in passing, to the 17 August 2010 meeting and to the offer of compensation that had been made, and that on the second occasion the Respondent’s solicitor had objected upon the basis that it was a reference to without prejudice communications.  When the Judge indicated, says the Respondent, that she could not hear details of without prejudice discussions, the Claimant did not object nor make any further comment.  She argues that at no stage did the Claimant suggest that he wanted to pursue this line of argument any further, and at no point did the Respondent understand that this was in fact his substantive complaint as now alleged.

22.	The Claimant tells me that it was plainly what he was complaining about.  In submissions he said, “I told her I was complaining about the date of 17 August 2010; I complained about it until I was blue in the face”.  He points out that of course that date was in time, and of course the dates of the other matters were such that he would be out of time.  When 17 August 2010 date was not mentioned in the decision, he said he was devastated; he felt let down, not only by the representatives, both barrister and solicitor, who attended him prior to the hearing, but by the way in which the Judge had ignored that central plank of his claim.

23.	The case came before HHJ David Richardson in this Tribunal on the sift.  It is plain that he thought that the 2010 claim was about delay; he does not appear to have understood from the papers before him that it had anything to do with the withdrawal of an offer that had been made in circumstances that would have been bound to cause distress and upset to any employee.  He granted permission upon the basis that it was arguable that the claim was about delay up to and including 17 August, and it was not possible for the Employment Judge to read it as relating at the latest to 4 June 2010.  That is certainly not the way in which the matter is now put before me.

Postscript
24.	The Claimant applied to the Tribunal for a review of the Judgment.  When he did so he then clearly made the point that he was complaining about the withdrawal of the compensation offer or agreement reached on 17 August.  The Employment Judge refused the application for a review on the ground that it had no reasonable prospect of success.  It is a matter of regret that she did not give further reasons, if only to say that she had heard, considered and rejected the point now made and, if so, why, because she says nothing about it in the Judgment, or alternatively that the point had never been raised and it was now too late.

Discussion
25.	The Judge was plainly entitled to regard the case as out of time if she was entitled on the material before her to conclude that the issues being raised by the Claimant were related to 4 June, or what was known by 4 June, and earlier.  That is common ground before me.  I have to ask whether she misunderstood materially what was being put to her.  I take into account the fact that Mr Charles, given the careful eloquence and intelligence of his submissions before me, is someone who is plainly easily capable of making a point and doing so clearly so that it is recognised and understood.  Nonetheless he is a litigant in person.  A Tribunal has to be careful to identify that which a litigant in person is complaining about.  However, he had been a litigant in person who had had the advantage of legal representation from both counsel and solicitor beforehand.  The Employment Judge was entitled to regard the documents and the conduct of the case by both as illuminating what was truly in issue.  It is plain that the witness statement of Mr Charles was read, and I cannot conceive that he would not have indicated clearly during the course of reading that witness statement what was the real subject of complaint if it had been, and that it would have been noted by the solicitor acting for Tesco.  The thrust of the documents put in by him, those which are accepted to be done by him, and those which were done on his behalf but which he rejects as being inadequate and improper services by professionals, corresponds in identifying the issues as relating to Mr Andrews’ discrimination and as to delay.

26.	The Employment Judge heard evidence from the Claimant.  That had to focus upon the dates relevant to this case, although it would also have dealt with the other two cases then before the Tribunal.  Although it is not easy sometimes for those who represent themselves to clearly identify that which they are complaining about, it was for that specific purpose that Judge Bloom made his directions, and it does not appear that any attempt was made to disown the answers by the Claimant prior to the hearing before Judge Tribe.

Conclusion
27.	In all those circumstances, I have come to the conclusion that, on the material that was before the Judge, the Judge was entitled to think that the complaint being advanced to her was a complaint that had two aspects to it: one was delay, and the other was disparate treatment as between him and Mr Andrews.  There was insufficient to indicate that the Claimant was making a case that the withdrawal of the compensation offer, if that is what it was, or the failure to honour the compensation agreement, if that is what it was, was an act of discrimination against him that was the central complaint in his claim.  It follows that I am obliged to conclude that there is no identifiable error of law in the Judge’s reasoning.  The appeal must therefore be dismissed.