Fullerton v Interights International Centre for The Legal Protection of Human Rights

At a preliminary hearing, discrimination complaints should not be treated as out of time where the pleaded facts are capable of amounting to an act extending over a period. The tribunal should consider the substance of the complaints and whether the alleged incidents are linked as part of an ongoing situation, rather than compartmentalising them prematurely. Whether the incidents ultimately establish a continuing act is ordinarily a matter for the merits tribunal.

For the statutory grievance procedure, step 1 requires sufficient notice of the kind of complaint. It does not require detailed particulars. Earlier documents and the surrounding context may be read with the later written statement.

Ms Fullerton brought claims against her former employer for constructive dismissal, race discrimination, racial harassment, sex discrimination and sexual harassment. The claims concerned alleged conduct by her line manager and the handling of her grievances, proposed management changes and grievance appeal.

Following a pre-hearing review, the Employment Tribunal ruled that some complaints had not satisfied step 1 of the statutory grievance procedure and that several discrimination complaints were out of time. Ms Fullerton appealed. Interights cross-appealed against findings that certain complaints had satisfied step 1. The central issues were whether the grievance documents sufficiently identified the complaints and whether the alleged acts could constitute a continuing act for limitation purposes.

1. Appeal allowed; cross-appeal dismissed. Ms Fullerton had complied with step 1 in respect of the race discrimination and racial harassment complaints within heads 2, 3, 4 and 5. She had also complied in respect of head 3. The Employment Tribunal’s distinction between race discrimination and racial harassment was unsustainable on the documents.

2. Step 1 required the employee to put the grievance in writing and give the employer notice of the kind of complaint being raised. It did not require detailed factual particulars. The documents had to be read together and in context. The resignation letter identified complaints about management’s handling of the grievance and appeal, refusal to change line management and the continuing treatment relied upon. The later email identified race discrimination. Together, they gave adequate notice.

3. For limitation under section 68 of the Race Relations Act 1976, the Employment Tribunal had treated the complaints in separate compartments. Applying Hendricks v Metropolitan Police [2003] IRLR 96, the correct preliminary question was whether the pleaded incidents were capable of being linked as an ongoing situation or continuing state of affairs, rather than a succession of isolated acts.

4. Heads 2, 4 and 5, concerning management’s handling of the complaints, were capable of constituting a continuing act culminating in the grievance appeal. It could not be ruled out at that stage that heads 1 and 3, involving the line manager within the same small organisation, formed part of the same continuing act. The time issues were therefore remitted to the merits tribunal.

5. The merits tribunal was to decide the limitation issues entirely afresh and was not bound by the earlier tribunal’s factual findings or view on whether an extension of time was just and equitable. The sex discrimination claim under head 1 was to proceed with the related race discrimination claim. Sex discrimination claims under heads 2 to 5 remained excluded.

• Employment Appeal Tribunal: The appeal against the Employment Tribunal’s judgment dated 30 March 2009 was allowed in part. The cross-appeal was dismissed.
• Employment Tribunal: At a pre-hearing review, preliminary issues concerning the statutory grievance procedure, limitation and extension of time were determined. The relevant judgment was dated 30 March 2009.