Appeal No. UKEAT/0091/15/DM
UKEAT/0024/16/DM

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

	At the Tribunal
	On 24 February 2016

Before
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
(SITTING ALONE)

UKEAT/0091/15/DM

MR J ZEB	APPELLANT

(1) XEROX (UK) LTD
(2) MR D WHITWORTH
(3) MR A ROBINSON	RESPONDENTS

UKEAT/0024/16/DM

MR J ZEB	APPELLANT

(1) XEROX (UK) LTD
(2) MR M HOLYOAKE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR NESAR RAFIQ
(Representative)	
For the Respondents	MR THOMAS CORDREY
(of Counsel)

SUMMARY
PRACTICE AND PROCEDURE - Striking-out/dismissal

1.	The Employment Judge erred in law in striking out claims of unlawful discrimination without a hearing where the Claimant advanced facts that were not significantly disputed but where the reasons for alleged poor and/or unreasonable treatment were part of the critical core of disputed facts that required a hearing.

2.	Nevertheless the claims were rightly regarded, in the alternative, as having little prospect of success.  The deposit Order made in the alternative would be substituted.

3.	A second appeal raised an issue not argued below, and there were no exceptional reasons to permit it to be argued.  In any event, there was no adequate material for the point to be determined.

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

1.	These appeals seek to challenge two Decisions, each made at Preliminary Hearings.  Because they were made at Preliminary Hearings, the facts have not yet been found, and although many of the primary facts are not in dispute the inferences to be drawn are disputed.  In the first challenge, claims of unlawful discrimination on the grounds of race, religious belief and sex were struck out by Employment Judge Forrest as disclosing no reasonable prospects of success in a Judgment with Reasons promulgated on 24 November 2014.  Secondly, the victimisation claims in a second originating application lodged by the Appellant, Mr Zeb, were directed to be dismissed as out of time by Employment Judge Rogerson in a Judgment with Reasons promulgated on 6 July 2015.

2.	I refer to the parties as they were before the Employment Tribunal.  The Claimant is represented by Mr Rafiq.  The Respondents, who resist this appeal, appear by Mr Cordrey.  Both appeared below.

Applicable Law
3.	The Employment Tribunal’s power to strike out a claim at a preliminary stage is derived from Rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.  That Rule enables a Tribunal to strike out a claim that has “no reasonable prospect of success”.  This power has rightly been described as a draconian one, and case law cautions Employment Tribunals against striking out a claim in all but the clearest cases, particularly where that claim involves or might involve allegations of discrimination.  Cases in which a strike out can properly succeed before the full facts have been found are rare.  As Lord Steyn explained in Anyanwu v South Bank Students’ Union [2001] IRLR 305:
“24. … For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases.  Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society.  In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. …”

In the same case at paragraph 37 Lord Hope made the following observations:
“37. I should like first to say that, if I had reached the view that nothing that the university is alleged to have done could as a matter of ordinary language be said to have aided the students’ union to dismiss the appellants, I would not have been in favour of allowing the appeal.  I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence.  The questions of law that have to be determined are often highly fact-sensitive.  The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out.  The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence. …”

4.	In Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 in the Court of Appeal, Maurice Kay LJ said:
“29. It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence.  It was an error of law for the employment tribunal to decide otherwise. … It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute.  An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation.  The present case does not approach that level.”

The First Claim
5.	At the Preliminary Hearing before Employment Judge Forrest, although the Claimant gave evidence, there had been no disclosure of documents and nor was the Tribunal provided with any witness statements on behalf of the Respondent.  Mr Cordrey submits that the Employment Judge took the Claimant’s case at its highest accordingly.  It seems to me, however, that while that may have been the intention, that is not what ultimately occurred.

6.	There is no dispute that Employment Judge Forrest directed himself correctly on the law, reminding himself of the need for great caution when considering a strike out application in a case of this kind.  He referred expressly to the guidance I have just referred to in Anyanwu and to the high hurdle for a Respondent to overcome in making such an application.

7.	The Tribunal identified (at paragraph 5) three principal acts of less favourable treatment relied on for the unlawful discrimination claims: first, the claim that the Claimant was removed from his post in September 2013; secondly, that he was not given any suitable alternative work following the removal from his post; and thirdly, that he was placed at risk of redundancy in April or May 2014.  In each case, the Claimant contended that each act was an act of unlawful race, sex or religion and belief discrimination.  His case was that these acts were all part of a plan to treat him badly and ultimately to force him out of his job.  At paragraph 6 the Tribunal rejected a submission that the case could be struck out on the basis of limitation:
“6. To decide whether the 3 acts are in fact linked in that way would require extensive evidence from the Respondents to explain the context and the reasons for the 3 actions.  That can only be done in practice at a full hearing.  It would not therefore be right to strike the claims out as out of time, without considering them in full, which cannot be done at this preliminary hearing.”

8.	The Tribunal made clear that Mr Cordrey was relying largely on the Claimant’s own statement and that in evidence the Claimant accepted that there was no history or background of ill feeling or poor treatment on account of his race, religion or gender.  The Tribunal records that he said he got on well with past line managers and that although his relationship with the Second Respondent, Daniel Whitworth, was not as good he did not allege that the Second Respondent had spoken disparagingly of him or treated him badly in any respect before the events in question.

9.	At paragraph 13 the Employment Judge referred to submissions centred on the burden of proof in discrimination cases.  He accepted that it would not be sufficient for the Claimant to show simply a difference in treatment and a difference of protected characteristic in order to reverse the burden of proof, but he did not accept that it was helpful to consider the burden of proof test when considering a strike out application.  He reasoned that the burden of proof is applied after hearing all the evidence and, in any event, that in this case, the Claimant had identified additional factors beyond a mere difference of protected characteristic and treatment.  For example, he identified the fact that the Second Respondent was said to have been less than frank in explaining the reasons for the Claimant to have to change job in September 2013.  He referred to the history of errors in the accounts department for which the Claimant, both parties accepted, was not to blame and to the fact that a subsequent justification for replacing the Claimant had only been advanced by the Respondent after discrimination claims had been made.  The Claimant suggested that his performance had been good and that he had done his job well in the past, without criticism or complaint, and without any suggestion that he needed to have an accountancy qualification or that such a qualification was required.

10.	Employment Judge Forrest concluded that these additional factors might be sufficient to shift the burden of proof, but concluded that that was not something he ultimately had to decide.  The reason for that appears to be that he concluded that there was no significant dispute about the additional factors nor was there any suggestion of a history of hostility on the grounds of race, gender or religion towards him or other employees.  So far as the claim relating to redundancy in particular was concerned, the Judge concluded that to argue that it was in effect a sham designed to force the Claimant out on the grounds of race, religion or gender when the entire department was being moved to the Philippines was simply incredible.  Thus the Judge concluded at paragraph 16 that the claim was based on:
“16. … nothing more than a belief, arrived at with hindsight, that [the Claimant’s] race, religion or sex may have contributed, to what has been, (from his point of view), not just an unfortunate but an eventually disastrous chain of events, culminating in dismissal, and unemployment for the first time in his working life.  But none of that establishes any sort of reasonable case that the subsequent events were planned, or had any connection in any way to each other; let alone, the crucial factor for me, had any causal connection to his race, religion or sex.”
11.	In advancing this appeal by reference to the three grounds, which, to a large extent, overlap, Mr Rafiq referred me to the ET1 as the critical document.  This, he argues, makes complaints against the First Respondent as an organisation and the Claimant’s employer and against the Second and Third Respondents, his immediate manager and manager’s manager.

12.	The ET1 was drafted by the Claimant himself as a litigant in person.  I bear that in mind when considering it.  It was lodged on 27 May 2014, and Mr Rafiq points to the following relevant contentions.  First, under section 8.2 in the fourth substantive paragraph the Claimant referred to the fact that his previous line manager was Adam Rowbottom with whom he had no problems. His new line manager, who took over in early January 2013, was the Second Respondent.  The Claimant asserts that the relationship with the new manager was not of the same quality.  No friendly chats took place, everything seemed to be very formal, the level of communication was very minimal, and there were hardly any face to face meetings.  The Claimant continued to do his job at the same standards and using the same professional approach despite the different approach by his new manager.

13.	Secondly, in October 2013 the Second Respondent told the Claimant that Dawn James would be taking over the work that he had been doing and that he would need to hand over the work to her.  The Claimant says it was not explained to him that he would have to train Ms James to do the job or that Ms James would be leading a team on various contracts.  The ET1 says if this had been explained, the Claimant would have asked to be considered for that post.  He says that the Respondents did not follow their equal opportunities policy in dealing with this post.  He says that only two individuals were affected - himself and Ms James - and in the result, he was left without a real job to do.  He goes on to say that the organisation chart produced by the Second Respondent of the team structure did not reflect the true position.  Ms James, a white woman, had worked with the Second Respondent previously.  It was not until he received the outcome of his grievance that it became apparent to him that the job he was being offered did not really exist at all, and he ended up with his job being given to somebody else and with himself having no real job to do.  He is the only non-white member of the team, as a person of Pakistani origin, and a Muslim who openly talked about his faith, especially during the month of Ramadan.  He had to train Ms James to do the job, which could have been given to him, and he was offered a job that did not exist.  

14.	Thirdly, the ET1 deals with discussions perceived by the Claimant to be ongoing between the Second and Third Respondents and “plotting” as to how to deal with him.  He refers to a discussion with the Third Respondent in which the Third Respondent pretended he did not know anything about the issue although the Claimant had received a document in the course of the grievance investigation that confirmed that he had been emailed by the Second Respondent about the situation.  He says an attempt appeared to have been made by both of them to try to bully him to accept a decision without complaining, and the Second Respondent made it clear that he was upset with him for getting the Third Respondent, a good friend of his involved and was wasting his time complaining.  

15.	Fourthly, the ET1 refers to a meeting at the City West Leeds office at which the Second Respondent said as his manager that he would decide what if any jobs he would give to the Claimant, that the Claimant could go on and involve whoever he wanted but things would not be changing and that he was wasting his time by involving the Third Respondent because nothing was going to be done.  The Second Respondent finished the meeting by making it clear that the Claimant could escalate matters but the outcome would still be the same; all managers work together and cover for each other.  There was a promise that the Third Respondent would contact the Claimant but he never did.

16.	On the penultimate page of the ET1, in the penultimate paragraph, it states:
“The claimant believes that he has been treated differently by Respondent 2 due to his race, sex and religion and therefore been subjected to unlawful direct discrimination in the way that the restructuring of the team was handled, the way that the Claimant wasn’t given a job to do and just left as a spare part.  The Claimant wasn’t given an opportunity to apply for the new job given to Dawn James which involved managing staff.  The Claimant believed that this treatment started during the period September 2013 and is still [continuing] until this date because the Claimant still doesn’t have a specific job ie duties that he does as his job.”

The form refers to the Claimant being placed at risk of redundancy in these terms:
“The Claimant has now been issued with letters informing him that he is at the risk of redundancy.  If the Claimant had not had his job changed, not been made promise [sic] of a false job, been returned back to his old job, or been given an opportunity to apply for the new job created that Dawn James got then he would not be at risk of redundancy.  The Claimant was informed on 15th April 2014 that he was at risk redundancy [sic] and on Thursday 22 May 2014 received a formal letter of risk of redundancy.  The claimant believes this all that has happened to him [sic] due to reasons of his race, ethnicity, religion and sex.  He believed that he has suffered direct discrimination.”

17.	Although in resisting this appeal Mr Cordrey contends that the ET1 barely pleads that the acts of less favourable treatment were because of the Claimant’s race, sex and/or religion, I disagree.  It seems to me, and it is implicit that this was Employment Judge Forrest’s view too, that the three principal acts of less favourable treatment on the grounds of those protected characteristics are adequately raised by the Claimant in this ET1.

18.	Mr Cordrey contends that the primary basis for the Claimant alleging that these acts were because of his protected characteristic is that he was the only person with the particular protected characteristic who was treated in the manner about which complaint is made.  I agree.  However, in addition to that primary basis for his complaint, as Employment Judge Forrest observed, the Claimant identified additional factors beyond a mere difference of protected characteristic and treatment.  For example, again, as Employment Judge Forrest observed, he relied on the relationship with his manager, the Second Respondent, who was less than frank in explaining the reasons for his change of job.  He relied on the fact that there had been a history of errors in the accounts department, for which it was agreed by both sides that the Claimant was not to blame, and the subsequent justification for replacing the Claimant advanced by the Respondents was that his replacement had an accounting qualification, which was not an explanation that was ever advanced until after discrimination complaints had been raised.

19.	In addition to those points identified by Employment Judge Forrest it is clear from the ET1 that the Claimant was also complaining about being singled out for unreasonable treatment.  He refers to procedures not being followed, to the fact that no job description was provided to him and to an implicit if not explicit allegation that his managers, the Second and Third Respondents, were not honest with him and that the role he was given was a role without substance, a pretend role, and he was given no work to do and then placed by them at risk of redundancy.

20.	Employment Judge Forrest accepted that the additional factors referred to might be sufficient to shift the burden of proof.  I agree.  At a Full Hearing the questions would be why did the Claimant have a poor relationship with the Second and later the Third Respondent?  Why was the Second Respondent hostile to him in the conversations referred to in the ET1?  That would have to be explored.  The Claimant alleges that his manager failed to explain why he was being moved from his job and made promises about new work that did not materialise.  Why that occurred and the reason for the treatment would all be part of the core disputed issues at a Full Hearing.  The Second Respondent may have good non-discriminatory reasons for his behaviour and his treatment, but these have not been explored in the evidence, and no findings have or could have been made.  If the behaviour is unexplained by the Claimant’s managers or suggests that protected characteristics played a part in the process adopted in this case and in the decisions taken to change his job, or about what work he should be offered and about placing him at risk of redundancy, inferences of unlawful discrimination could be drawn.

21.	So far as unreasonable treatment is concerned, whilst, as Mr Cordrey submits, unreasonable treatment on its own is not a basis for drawing inferences of unlawful discrimination, unexplained unreasonable treatment might well afford such a basis.  The question of what inferences to draw forms part of the critical core of disputed facts in any discrimination case, and this case is no different.

22.	Mr Cordrey, however, relies on the second sentence in paragraph 15, where the Employment Judge said:
“15. … The key point for me is that none of those factors are [sic] substantially disputed by the Respondent: there is no significant dispute of evidence in this case …”

23.	He submits that an explanation was provided by the Respondent and accepted by the Claimant that fully explained, for example, the Claimant’s removal from his post.  Accordingly, the Tribunal was entitled to reach the conclusion it reached.  I do not accept that submission.  It is right to say that the primary facts were not substantially disputed, but it does seem to me that the explanations as to why the Respondents treated the Claimant in the way they did must have been disputed.  Only the Respondents knew what their explanation for the various treatments relied on was, and even if some elements of the explanation were accepted by the Claimant, there was no explanation given - certainly, none is recorded by the Tribunal - as to why the Second Respondent was not frank in giving reasons for asserted unreasonable treatment and for the poor relationship referred to by the Claimant.  Those matters require investigation and could lead potentially to the drawing of inferences.  These are not peripheral facts that can properly be put to one side whilst concentrating on the essential facts of the case.  The explanations for the treatment alleged to be detrimental and less favourable form part of the critical core of facts in a discrimination claim and are likely, as I have already said, to be known only by the Respondents.  Accordingly, when the Judge said by reference to the additional factors he had identified that might shift the burden of proof, that those factors were not substantially disputed, it seems to me that he overlooked the explanations and the inferences that might be drawn from those explanations, and thereby failed to recognise the extent to which the reasons for particular treatment would require exploration and investigation.

24.	That he did so (at paragraph 15) is to be contrasted with his approach at paragraph 6, where the Judge recognised that extensive evidence from the Respondents to explain “the context and reasons for the 3 actions” in the case of the three alleged acts of less favourable treatment would be necessary before any view could be reached about whether they were linked, who did what, when, where and for what reason.  He said that could not be done in practice apart from at a Full Hearing.  That is an express acknowledgement that there was a critical core of disputed issues in relation to the question whether there were continuing acts in this case, and, in my judgment, the same was true for similar reasons, of the alleged acts of unlawful discrimination themselves.  The Tribunal was not entitled to conclude that the facts in the ET1 provided no reasonable prospect of supporting a claim that a more than trivial reason for the three acts complained of was a protected characteristic.  In the absence of a non-discriminatory explanation for the unreasonable treatment the Claimant alleged he was singled out for and absent a non-discriminatory explanation for the poor relationship the Claimant said he had with his manager, there are, in my judgment, facts pleaded in the ET1 from which a Tribunal could infer unlawful discrimination, and it was not possible for this Tribunal to conclude that this claim had no reasonable prospect of success.

25.	In the alternative, Mr Cordrey contends that even if there were disputed facts, none relate to the redundancy complaint.  They are limited, he submits, to the first two acts of less favourable treatment relied on.  At best, accordingly, the Claimant may be able to show an arguable case on the first two acts, but that is not good enough in circumstances where only the third act was in time.  I do not accept that submission.  The Employment Judge treated the three acts together when he came to analyse their prospects of success (save insofar as he referred at paragraph 15 to the sham argument in relation to redundancy).  The disputed facts identified at paragraph 14 and the additional factors identified in the ET1 include generic references to the Claimant’s poor relationship with his managers and their unreasonable treatment of him in relation to the whole process, starting with the way in which the restructuring of the team was handled, the fact that the Claimant was not given a job to do and was left in a “pretend” role and ending with being placed at risk of redundancy.

26.	Whilst I accept, as Mr Cordrey contends, a poor relationship on its own may not be a sufficient basis to advance an unlawful discrimination claim, a poor relationship that is unexplained may well give rise to the possibility of an inference when combined with less favourable treatment and a difference in protected characteristic.  Similarly, unreasonable treatment on its own may not be a sufficient basis on which to advance an unlawful discrimination claim, but unexplained unreasonable treatment coupled with less favourable treatment and a difference in protected characteristic might well be.  In my judgment, the correct response to this application was to make a deposit Order, as the Judge did in the alternative at paragraph 17, to reflect the fact that the prospects of success in this case were rightly regarded as low.  

27.	Dealing briefly with ground 3, which argues that the Employment Judge was perverse to say that the Claimant in effect argued that the redundancy exercise was a sham designed to force him out (an argument regarded by the Judge as simply incredible) it is implicit in the answer provided to this ground on behalf of the Respondents that they accept that this was no part of the Claimant’s express case.  Rather, it is said that if his case is that being placed at risk of redundancy was an act of unlawful discrimination, he must necessarily have been arguing that the whole exercise was a sham, and the Tribunal was fully entitled to hold that this claim lacked all credibility.  I do not agree.  The fact that the Claimant challenged as unlawfully discriminatory the decision to place him at risk of redundancy at the same time as other members of his team does not entail that he was arguing that the whole exercise was a sham.  Indeed, the contrary appears from his ET1.  His argument was more nuanced than that.  It centred on the fact that having had a previously good relationship with his former manager and worked well without fault, when the Second Respondent took over as his manager, Ms James was appointed to his post, his manager was less than frank in explaining the reasons for that change, the Respondents behaved in breach of equal opportunities policies and unreasonably in relation to promises of alternative work that did not materialise, and ultimately he was placed at risk of redundancy.  I am persuaded in those circumstances that the Employment Tribunal erred in law in characterising the Claimant’s case in the extreme way it did absent a strong factual basis for doing so.

28.	For all these reasons, it seems to me that the caution expressed by the Employment Judge at paragraph 6 about striking out the claims on the basis of a time bar argument applied equally to the strike out he in fact ordered.  There are, as Mr Cordrey himself accepts, unique challenges in proving unlawful discrimination claims, and whilst it is undoubtedly the case that Rule 37 is capable of being applied to all claims, including discrimination claims, the caution urged on Tribunals by the Court of Appeal in relation to strike out applications in discrimination cases remains appropriate.  Tribunals are encouraged to exercise their Rule 37 powers but only in appropriate cases.  Where there is a critical core of disputed issues including those relating to the reasons for impugned treatment, it is inappropriate and wrong to do so.

29.	The appeal is accordingly allowed in relation to claim 1, and a deposit Order as indicated by the Employment Judge is substituted.

The Second Claim
30.	This concerns complaints made by the Claimant that his non-appointment to five roles to which he applied during the redeployment process amounted to unlawful discrimination based on victimisation.  These were dealt with by Employment Judge Rogerson at a Preliminary Hearing on 29 June 2015 and are addressed by her at paragraphs 26 to 33 of her Judgment.  The Judge disposed of this complaint on two bases.  First, she found that in respect of four of the five posts the claim was out of time (see paragraph 29).  No challenge was made to that decision, although before Langstaff P, Mr Rafiq argued that there was a sufficient link between the rejection decisions to amount cumulatively to an act extending over a period.  The second basis on which the Judge disposed of this complaint is her conclusion that there were no prospects of success in relation to four of the roles because the Claimant had not explained any factual basis for asserting any link between the decision makers and the protected act such as would support a complaint of victimisation.

31.	The alternative conclusion reached is to be contrasted with the conclusion the Employment Judge reached in relation to the Client Relationship Manager role, where, albeit the complaint was out of time, the Judge concluded that some factual basis had been asserted to argue knowledge by the decision maker of the protected act so that if that allegation had been in time she would have concluded that it had little prospect of success and would have ordered payment of a deposit.

32.	At a Rule 3(10) Hearing the only ground permitted to proceed to a Full Hearing was the ground relating to time and the question whether there was an act extending over a period in respect of the client relationship manager role.

33.	The Respondent contends that this ground of appeal raises an argument not raised by the Claimant before the Employment Tribunal.  Moreover, there are no exceptional circumstances that permit the Appeal Tribunal to exercise discretion to allow this argument to be pursued now.  On that basis alone, the Respondent contends this appeal should fail and be dismissed.

34.	It is well established that new arguments can be considered by the Appeal Tribunal but the discretion to do so is exercised only in exceptional circumstances, particularly if the result would be to open up fresh issues of fact that, because the point was not in issue, were not sufficiently investigated before the Employment Tribunal.  Although initially it appeared that Mr Rafiq was arguing that the question of these five jobs forming part of a continuing act extending over a period was raised by him before the Tribunal, he realistically accepts that the notes of the hearing taken by Mr Cordrey’s instructing solicitor at pages 167 and 168 of the appeal bundle do not reflect any such argument.  In stark contrast they do reflect an argument based on a continuing act in relation to the claim that there was unlawful discrimination in the failure properly to investigate the Claimant’s grievance.  Mr Rafiq accepts that he cannot go behind those notes, although his recollection is that he did raise the argument.

35.	Having considered carefully all relevant material available to me, I have come to the conclusion that the argument was not raised.  First, there is nothing in the Judgment of Employment Judge Rogerson that reflects that this case was put forward by the Claimant as a case of a continuing act.  By contrast, so far as the claim in relation to unfair investigation is concerned, that was expressly recorded as reliant on a continuing act at paragraph 30 of the Judgment.  Moreover, as Mr Rafiq has accepted, he has not been able to provide me with any contemporaneous documentary evidence to support such a claim having been made, whereas I have the Respondents solicitor’s note that shows no such argument as having been advanced. 

36.	I am also persuaded, in any event, that the basis of the continuing act argument on appeal is inconsistent with what appears to have been argued and accepted before the Tribunal.  It appears from paragraphs 26 and 27 that the Claimant accepted that the five job rejections were made by five different decision makers.  On appeal, by contrast, it is suggested is that they were the responsibility of one individual, Amar Kameer, and therefore formed part of an act extending over a period.  There is no reference in the notes to Mr Kameer.  Moreover, on Mr Rafiq’s submissions, it is difficult to see how the reference to Mr Kameer assists the Claimant.  The allegation is that Mr Kameer, an external manager, was responsible for sourcing candidates for the Respondent in the redeployment process, and as the only common link between the five roles, he put the Claimant forward for each role.  That however, undermines the Claimant’s contention that there was as a consequence a continuing act, since, although Mr Kameer put the Claimant forward for consideration for each of those five roles, it is accepted by him that five independent managers, having looked at his application, rejected him.  Mr Kameer’s role did not involve any different or less favourable treatment.  On the contrary, he put the Claimant forward each time.

37.	In any event, no exceptional circumstances that would allow the Appeal Tribunal to exercise discretion to permit this new point to be run have actually been identified.  Even had exceptional circumstances been advanced, it seems to me that these are matters that do result in a need to explore the factual basis relied on by the Claimant to advance an arguable case based on a continuing act here.  The issue has never been pleaded, and in the circumstances it is impossible for me to resolve the matter.

38.	The Claimant has had many opportunities to raise this argument.  First, in the letter sent to the Tribunal shortly after the ET3 was put in, the Respondent expressly raised the question of time.  Notwithstanding that letter, the Claimant did not respond, and nor was there any application to amend.  Secondly, at the hearing itself, there is nothing to suggest that he raised this point.  Thirdly, by letter dated 30 June sent immediately after the hearing, further submissions were made by the Respondent as to why there could be no continuing act in this case.  There was no response to that letter, as Employment Judge Rogerson states in her Reasons at paragraph 31.  Finally, the Claimant was provided with the witness statement of Chris Wood, the manager who rejected his application for the Client Relationship Manager role, served well in advance of the Preliminary Hearing.  The Claimant neither disputed that statement with a witness statement of his own, nor did he apply to amend to raise the issues now sought to be introduced.

39.	For all those reasons, this is not a case where it is open to the Claimant to raise the continuing act argument on appeal.  The appeal in respect of the second claim, accordingly, fails.

Costs
40.	At the conclusion of my judgment the Respondent applied for costs of the second appeal on the basis that the point argued had not been pursued below, there was no exceptional reason for permitting it to be argued, and nor could this Tribunal deal with it on the material available.  The Respondent contends that the Claimant has behaved unreasonably in pursuing a misconceived appeal in the circumstances.  

41.	I accept that Mr Rafiq genuinely believed that the point had been argued, when he raised it at the Rule 3(10) Hearing, and there was nothing in the documents to point him in the opposite direction.  However, after permission to proceed to a Full Hearing was given, solicitors for the Respondent wrote to the Claimant and Mr Rafiq pointing out that the case had not been argued on this basis.  By letter dated 15 February they sent the notes of the hearing showing Mr Rafiq arguing continuing act in respect of the grievance investigation but not in respect of the five posts in the redeployment process.  That should have caused the Claimant to reflect carefully and to have pursued the appeal on the basis that he did after 15 February was unreasonable.

42.	In those circumstances, there is a basis for the Respondent to seek costs, but only after 15 February.  By that date the costs had already been incurred in respect of the ET3 and the skeleton argument, lodged on 10 February, and so those costs would not have been avoided.  Mr Cordrey contends that half of the brief fee should fall to be paid on this basis, but I do not agree with him about that.  The time taken up in relation to the second appeal has been very limited at this hearing and most time and work has been devoted to dealing with the first claim.  On that basis, I would have awarded a small proportion of costs only if an award was to be made.  

43.	However, in deciding whether or not to make an award of costs the EAT is entitled to have regard to the paying party’s means and any asserted inability to pay.  Mr Rafiq has explained the Claimant’s situation to me and the fact that he is substantially in debt with limited means.  In those circumstances, although that does not prevent me from making an award, I have concluded in the exercise of my discretion that it would not be in the interests of justice to make an award of costs on this occasion.

44.	Accordingly, the first appeal is allowed and a deposit Order is substituted on the terms indicated by Employment Judge Forrest.  The second appeal fails and is dismissed.  There is no Order for costs.