Appeal No. UKEATPA/0358/11/JOJ
UKEATPA/0506/11/JOJ
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At the Tribunal
On 18 November 2011
Before
HIS HONOUR JUDGE SHANKS
(SITTING ALONE)
MR
M L CROKER APPELLANT
SURREY COUNTY
COUNCIL RESPONDENT
Transcript of Proceedings
JUDGMENT
RULE 3 (10) APPLICATION
- APPELLANT ONLY
HIS HONOUR JUDGE SHANKS
Introduction
1.
This is an appeal against a decision of the
Employment Judge Zuke made on 2 February 2011, whereby he
rejected the Appellant’s claim on the basis that it was out of time. The
Appellant, Mr Croker, was a retained firefighter with Surrey County
Council. In August 2003 he broke his finger whilst on duty. In due
course he brought a personal injury claim in respect of that break, in the
Guildford County Court in 2006.
2.
In July 2007, Surrey County Council started a disciplinary
investigation against him relating to certain claims that he made from July and
August 2003 for wages, overtime and travel. The letter informing him of
that disciplinary investigation is at pages 121 to 122 in the bundle of
documents that I have received, and I should say in fact it starts on page 119,
and the letter itself is dated 20 November 2007, so it comes some
time after the disciplinary investigation was started.
3.
It sets out, on pages 121 and 122, the various matters that are to be
investigated. It talks about, first of all under a heading “Normal Hours of
Work”, it says “we therefore believe you may have provided incorrect
information regarding your normal hours of work on the claim form submitted”.
It then talks about overtime claimed for 16 August, and says “records
submitted to the Service suggest that only four hours overtime was available on
this occasion”, as opposed to five hours, which had been claimed.
4.
Then it deals with overtime claimed on 20 August and says that
“only 14.25 hours were available” as opposed to 16.25 which had been claimed,
and it says, in relation to those two overtime claims, “we therefore believe
you may have provided incorrect information in relation to both the above
overtime claims”, and then it deals with mileage and travel time, and it says
“we therefore believe that you were not entitled to claim either mileage or
travel time as declared on the claim form (P195)”. Then it says “the
discipline procedure has been moved from the informal to the first formal
stage”.
5.
It is right to say, in relation to this disciplinary investigation,
first of all that it did not directly arise from the personal injury claim.
The matters that were being investigated came to light, I think, as a result of
the claim. Secondly, it is right to right to record at this stage that the
word “fraud” is not used in that letter, although it is perhaps implicit in
what is said and what I have read out.
6.
On 27 July 2009, that is two years after the disciplinary
investigation had been commenced, the personal injury action concluded at
Guildford County Court. At Guildford County Court, Mr Croker was present
and representatives of Surrey. What exactly was said on that occasion about
the disciplinary investigation is a matter of dispute. The Appellant’s case,
as put to Judge Zuke, was, and I’m now quoting from Judge Zuke’s decision,
page 76, paragraph 16, “even as the Claimant puts it [that is the Appellant],
he was told that the disciplinary process would be finalised shortly after that
hearing.”
7.
It is fair to say that that wasn’t exactly the way it was put in the
Appellant’s counsel’s summary, which is a document at pages 46 to 48 and, in
fairness, I should quote exactly the way it had been put by Martin Ward,
who was counsel for Mr Croker at that hearing. What he said in his
summary was this (paragraph 6 at page 47):
“6. Mr Croker’s case is that the Respondent’s
representative was specifically asked to confirm at that hearing [that is the hearing at Guildford County Court]
that the allegations which were the subject of the disciplinary proceedings
would be retracted, but the Respondent’s representative would not confirm this
would be done. He simply indicated that it was unlikely that those
disciplinary proceedings would go any further.
7. With the disciplinary proceedings apparently still
proceeding, Mr Croker submitted a grievance on 27th May 2010
regarding the Respondent’s failure to finalise the disciplinary case. He
sought a retraction of the allegations made against him. This was not
provided. Mr Croker therefore appealed that decision.”
8.
The Appellant has told me today, in the course of this hearing, that
after the conclusion of his personal injury case on 27 July 2009, he
or his solicitors wrote to Surrey on a number of occasions, complaining that
nothing had been done about disciplinary proceedings but that he was ignored,
and he therefore started a grievance, as I have already mentioned, on 26 or
27 May 2010, to the effect that he had not been told what was
happening about the disciplinary investigation.
9.
That, initiating that grievance, finally led to a letter which is
central to Mr Croker’s case today, which is at page 170 in my bundle and
which is dated 4 August 2010. In that letter, on behalf of Surrey
County Council, a Mr Owen-Hughes said this, under the heading “Grievance
1”:
“Having reviewed the case and spoken to the SCC legal advisor, I
understand that an agreement was made between both parties at the conclusion of
legal proceedings [that must be the Guildford
County Court] whereby no further action would be taken by either parties
[sic] in regard to overpayment and fraud vs. personal injury claim. I do not
believe that there are any outstanding issues surrounding the fraud case and
this process was therefore concluded.”
10.
That letter is the first mention of the word “fraud” and that, as I will
describe is, Mr Croker says, significant. Three months after that letter
the claim form in these proceedings was put in on 3 November 2010.
It is important that I quote again from the ET1, and that’s at page 29, which
said as follows:
“1. The
Claimant, whilst employed by the Respondent, sustained an injury which he
believed resulted from the Respondent’s failure to comply with its legal
obligations and/or involved an endangerment to his health and safety.
2. In
notifying the Claimant of the said personal injury claim [and that must have meant the Respondent] the
Claimant made a protected disclosure in good faith [so the basis of the claim was that he had made a protected disclosure].
3. As a
result of making that protected disclosure, the Respondent initiated and
thereafter persisted in disciplinary proceedings against the Claimant which
were unjustified. When he requested that the disciplinary proceedings be
finalised, his request was ignored.
4. The
Claimant has suffered anxiety, distress and injury to feelings as a result of
the said disciplinary proceedings [I will not
read the next two or three lines].
5. In
view of the above, I believe there has been a breach of my human rights as I
have had disciplinary proceedings hanging over me for almost 3 years now.”
11.
The Surrey County Council applied, effectively, to strike out the claim
on the basis that it was out of time and it was that that Judge Zuke had
to rule on, and it is his ruling that has led to this appeal. The relevant
law, so far as the time for bringing a complaint of this nature, namely a
complaint of detriment consequential on a protected disclosure, is to be found in
s.48 of the Employment Rights Act 1996, and that says, at
subsection (3):
“(3) An employment tribunal shall not consider a complaint under
this section unless it is presented-
(a) before the end of the period of
three months beginning with the date of the act or failure to act to which the
complaint relates, or where that act or failure is part of a series of similar
acts or failures, the last of them; or
(b) within such further period as the
tribunal considers reasonable in a case where it is satisfied that it was not
reasonably practicable for the complaint to be presented before the end of that
period of three months.”
12.
Then, crucially, subsection (4) says this:
“(4)
(a) where
an act extends over a period, the “date of the act” means the last day of that
period, and
(b) a
deliberate failure to act shall be treated as done when it was decided on;
and, [this is the crucial part
of the section for the purposes of Judge Zuke's Judgment] in the
absence of evidence establishing the contrary, an employer shall be taken to
decide on a failure to act when he does an act inconsistent with doing the
failed act or, if he has done no such inconsistent act, when the period expires
within which he might reasonably have been expected to do the failed act if it
was to be done.”
13.
Judge Zuke analysed the complaint brought by Mr Croker as
being a failure to act by Surrey County Council, following on from whatever was
said at the hearing at the Guildford County Court, and he found that that act
could reasonably have been expected to have been done within three months of
that hearing, therefore by October 2009, and thus this claim, which was
not brought until November 2010, would have been well out of time.
14.
The Appellant seeks to appeal. As he will no doubt have been told many
times, not least by Ms Stanzel, who represents him today, an appeal to
this Tribunal lies only on a point of law. As I say, Ms Stanzel
represents him today under the auspices of ELAAS, and this is a rule 3(10) hearing
to consider whether, in fact, the appeal discloses any arguable point of law.
Ms Stanzel has raised a number of points in oral argument and I will deal
with them one by one.
15.
First of all, in broad terms, it is Mr Croker’s case that time
should run from the letter of 4 August 2010, slightly less than three
months before proceedings were started, because this letter is the first time
that the word “fraud” is mentioned in this connection. I am afraid there are
two major problems with that submission. The first is that that is not how the
claim is put in the ET1. The complaint is the initiation, and continuation, of
the disciplinary proceedings, which it is clear Mr Croker was not happy
with. It is not said anywhere in the ET1 that the complaint is a
categorisation later, as he understands it, as fraud. So that is not the way
has claim has been put.
16.
The second problem is that it is clear that the nomenclature, the naming
of the proceedings as “fraud”, was not an essential feature of his complaint
because, indeed, the grievance which led to the Employment Tribunal case, which
as I have said was started in May 2010, either 26 or 27, was started well
before the letter of 4 August 2010, and it does not seem to me
therefore that it is sustainable to say, as Ms Stanzel did, that the use
of the word “fraud” was, in some way, an essential part of the claim which had
to be known of before he could contemplate bringing such a claim. That goes to
another point that I will come to a little later, to do with whether it was
reasonably practicable to bring the claim earlier. So the first point about
time running from the letter of 4 August, I am afraid I reject.
17.
The next point raised by Ms Stanzel is that the complaint should
really be categorised as a complaint about the fact that Surrey County Council
were persisting in the disciplinary proceedings. They persisted in them until
4 August 2010 and therefore that act persisting in, did not end until
4 August 2010 so that the claim was within time when it was brought
in November 2010.
18.
The problem with that submission is that there is no evidence at all
that anything was done in relation to these disciplinary proceedings by Surrey
County Council between July 2009 and August 2010. In fact, quite the
contrary. The Appellant’s whole complaint is that nothing was done and that is
why he brought his grievance, and that is why ultimately he brought his claim
in the Tribunal. That is the way the judge analysed the case, and it seems to
me it is simply not arguable that he made an error of law in so doing.
19.
The third point made by Ms Stanzel is that when the judge decided
that Surrey County Council should have acted within three months of
July 2009, he fell into error. I am afraid it is impossible to challenge
that finding that they should have acted within three months, as an error of
law. It was simply a finding of fact and one that was open, in my view, to the
judge looking at all the facts in the case, and the kind of finding that the tribunals
simply have to make, when applying s.48(4). They have to reach a view about
the time within which something should have happened, if it did not, and cannot
be argued that three months was not a finding that was open to the judge.
20.
If three months was wrong then, on the Appellant’s own case, by
May 2010 when he himself was bringing a grievance about nothing happening,
it surely must be the case that under subsection (4), Surrey County Council
ought to have acted. But by May 2010, I am afraid, to November 2010
is way over three months, so that cannot be that the three months picked on by
the Tribunal judge, if that was wrong, it would not make any difference.
21.
Finally, Ms Stanzel says that it was not practicable for
Mr Croker to bring his proceedings earlier because he had not realised
that the disciplinary proceedings were categorised as fraud, and therefore he
only had all the information in one place as at 4 August 2010. The
problems with that, I have already indicated when I was dealing with the
question of time running from the letter of 4 August, and the first use of
the word “fraud”.
22.
There is another objection to such a line of argument, which is that
this point about it not being practicable was not taken in front of the
Employment Tribunal and the judge expressly recorded that that was the case.
It would be far too late, in my view, for it to be taken in front of the
Employment Appeal Tribunal. So I am afraid, having listened carefully to
Ms Stanzel and analysed her points as I have, no arguable point of law is
raised by this appeal and I am afraid the appeal is dismissed.
