TIME LIMIT

Arthur v London Eastern Railway Ltd (t/a One Stansted Express): [2006] EWCA Civ 1358

CA: Mummery, Sedley and Lloyd LJJ: 25 October 2006

The claimant, who was employed as a cabin crew member on trains operated by the employer, brought a complaint that he was subjected to continuous detriment by his employer, contrary to section 47B of the Employment Rights Act 1996, because of public interest disclosures he had made to the police and to his employer, concerning assaults inflicted on him. The detriments complained of consisted of a succession of various acts and failures to act involving a number of different people, many of which had occurred more than three months before the presentation of his complaint. The employment tribunal at a pre-hearing review, without hearing evidence, ruled that there was no "series of similar acts" for the purposes of section 48(3) and excluded the majority of the claim as out of time. The Employment Appeal Tribunal dismissed an appeal by the claimant.

The claimant appealed.

The Court of Appeal held:
In order to determine whether acts, or failures to act, were "part of a series of similar acts or failures" for the purposes treating them as being within time under section 48(3) of the Employment Rights Act 1996, it was preferable for a tribunal to find the facts, looking at all the surrounding circumstances, and to see what link there might be between the acts both within and outside the limitation period, before attempting to apply the law. The employment tribunal had erred in determining the important time point in the way it did, solely on the basis of legal argument without hearing any evidence or making any findings of fact, and the case would be remitted for a full merits hearing before determining whether the earlier acts were part a series of similar acts.

Per Mummery and Sedley LJJ. It is possible that a series of apparently unconnected acts could be shown to be part of a series or to be similar in a relevant way by reason of them all being done to the claimant on the ground that he had made a protected disclosure.

The appeal was allowed.

Appearances: Stephen Bartlett-Jones and Anisa Niaz (Toynbee Hall Legal Advice Centre) for the claimant; Lydia Seymour (Kennedys) for the employer.