Arthur v London Eastern Railway Ltd

The Court of Appeal considered the meaning and application of the time limit provision in section 48(3) of the Employment Rights Act 1996 (Part IVA) for complaints of detriment for protected disclosures. The court held that whether particular acts outside the three month limit can be treated as in time because they form "part of a series of similar acts or failures" with acts inside the period is a question of fact requiring evidence. A chairman of an employment tribunal should not make that time-limit determination at a preliminary legal-only hearing without factual findings. The Court allowed the appeal, set aside the employment tribunal's pre-hearing ruling and remitted the whole matter for a full merits hearing so that the tribunal can decide, on evidence, whether the alleged acts constitute a continuing act or a series of similar acts within section 48(3).

Background and parties: The appellant, Mr John Arthur, an on-train cabin crew member, brought a complaint under Part IVA of the Employment Rights Act 1996 alleging detriment after making protected disclosures about assaults and safety on trains. He alleged a sequence of detrimental acts and failures by his employer, London Eastern Railway Ltd. The employer denied most allegations and contended that all but one of the matters were out of time.

Procedural posture: The originating application was presented on 13 July 2004. At a pre-hearing review the employment tribunal chairman, sitting alone and without hearing evidence, held most of the alleged acts were time-barred because they did not form "a series of similar acts or failures" under section 48(3). The Employment Appeal Tribunal (HHJ Reid QC) dismissed Mr Arthur's appeal from that ruling. Permission to appeal to the Court of Appeal was granted by Sedley LJ.

Nature of the claim and relief sought: The claim was for protection against detriment under section 47B (protected disclosures) and, if established, compensation under section 49. The dispute before the Court of Appeal concerned only the time-limit defence under section 48(3) and whether acts outside the three month limit could be considered in time as part of a series.

Issues framed:

• How to construe "a series of similar acts or failures" in section 48(3).
• Whether a pre-hearing review without evidence was an appropriate procedure to decide that time-limit question in this case.

Court's reasoning and conclusion: The court analysed the purpose of Part IVA and the narrow three month limitation scheme, recognising exceptions for continuing acts and series of similar acts. It concluded that deciding whether disparate acts constitute a "series of similar acts or failures" requires factual inquiry into the circumstances linking the acts (for example identity or connection of perpetrators, organisation or concerted action, and the factual basis for asserting a common link). The Court said motive is not a helpful abstract test at the strike-out stage; instead factual findings should be made before applying the statutory language. It was therefore inappropriate for the tribunal chairman to resolve the limitation point on legal argument alone. The Court allowed the appeal, set aside the tribunal's order and remitted the case for a full merits hearing on all particularised acts so the tribunal can decide, on evidence, whether they form a continuing act or a series of similar acts within section 48(3). The Court also invited the claimant to concentrate on the most important matters to limit costs.

Appeal allowed. The Court of Appeal held that the employment tribunal erred in deciding on the time-limit point under section 48(3) without factual findings or evidence. Whether acts outside the three month limit can be treated as part of a "series of similar acts or failures" is a question of fact. The tribunal's order was set aside and the matter was remitted for a full merits hearing to determine, on evidence, whether the acts were part of a continuing act or series within section 48(3).

Originating application presented to the Employment Tribunal on 13 July 2004. Chairman of the Employment Tribunal made a pre-hearing ruling (26 January 2005) that most alleged acts were out of time. Employment Appeal Tribunal (HHJ Reid QC) dismissed the claimant's appeal by order dated 13 June 2005. Sedley LJ granted permission to appeal to the Court of Appeal on 17 March 2006. Court of Appeal allowed the appeal on 25 October 2006 (neutral citation [2006] EWCA Civ 1358; A2/2005/1369).