Arthur v London Eastern Railway Ltd

For the purposes of section 48(3) of the Employment Rights Act 1996, whether alleged detriments form a series of similar acts or failures is ordinarily a fact-sensitive question. The tribunal must consider all the surrounding circumstances rather than determine the issue abstractly without evidence.

A timely final act is required. The earlier and later acts must also have a relevant connection which makes them both a series and similar. In an appropriate case, the statutory ground on which apparently disparate acts were done may provide that connection. Time-barred allegations cannot attract compensation, but they may remain evidentially relevant to liability for timely allegations.

The employee alleged that his railway employer subjected him to a succession of detriments because he had made protected disclosures concerning workplace assaults, staffing and safety. His originating application was presented on 13 July 2004. Some alleged acts and failures fell within the preceding three months, but most did not.

At a pre-hearing review, the Employment Tribunal held without hearing evidence that the earlier allegations were not part of a series of similar acts or failures. The Employment Appeal Tribunal dismissed the employee’s appeal at a preliminary hearing. The central issue was whether the limitation issue under section 48(3) of the Employment Rights Act 1996 could properly be determined without evidence.

1. Appeal allowed unanimously. Mummery LJ, with whom Sedley LJ agreed, held that the Employment Tribunal erred in resolving the section 48(3) limitation issue solely on legal submissions and without evidence.

2. The statutory question is not answered by an abstract choice between a narrow requirement of factual likeness and a broad common-motive test. A claimant must show a timely final act or failure, and a relevant connection between that act and the earlier allegations which establishes both a series and similarity. The tribunal must examine all the circumstances, including the alleged perpetrators, their relationship, whether their conduct was organised or concerted, and why the conduct was allegedly done.

3. The court did not rule out the possibility that apparently disparate detriments could be linked because each was done on the ground that the employee made a protected disclosure. Sedley LJ agreed that this could be consistent with the statutory purpose. Lloyd LJ concurred in allowing the appeal and in requiring evidence, but considered that the statutory ground alone could not constitute the requisite similarity because that would deprive the word “similar” of independent work.

4. Save in an exceptional case, it will usually be preferable to hear the evidence on all alleged acts and decide the merits and limitation issues together. A preliminary hearing with relevant evidence remains possible, but a bare preliminary determination may not save time or cost. Earlier time-barred acts cannot found compensation, but may be relied upon as evidence bearing on the commission and reason for acts within time.

5. The Employment Tribunal’s order was set aside. The case was remitted for a full merits hearing on all particularised acts and failures, followed by a factual determination whether they formed a series of similar acts or failures ending after 14 April 2004.

• Court of Appeal (Civil Division). Allowed the appeal and set aside the Employment Tribunal’s limitation ruling: [2006] EWCA Civ 1358.
• Employment Appeal Tribunal. HHJ J R Reid QC dismissed the employee’s appeal at a preliminary hearing on 13 June 2005: EAT 017605CK.
• Employment Tribunal. At a pre-hearing review, the chairman held that most pre-14 April 2004 allegations were out of time because they were not part of a series of similar acts or failures.