Wason & Anor v Holborn Community Assocation

For statutory employment time limits, the effective date of termination is governed by the relevant statute. The employee must be informed of the dismissal, or at least have a reasonable opportunity to discover that employment has ended. Common-law rules concerning acceptance of repudiatory conduct do not determine the statutory date. In assessing communication, tribunals may consider the practical realities, including an instruction to return to work, refusal to do so, cessation of work and withdrawal of pay. Appellate tribunals must respect factual findings unless they disclose an error of law or perversity. In discrimination claims, a tribunal may use inferential reasoning where the statutory burden-shifting provision does not apply, provided it evaluates the whole evidence and reaches a conclusion on the balance of probabilities.

The claimants were mother and son who performed interlinked cleaning work for a charitable community association. The Employment Tribunal found that the son’s cleaning contract ended when he failed to return to that work after being instructed to do so and the association engaged another cleaner. The mother’s dependent cleaning contract ended at the same time.

The claimants brought claims including unfair dismissal, wrongful dismissal, unlawful deductions and race discrimination. The Employment Tribunal held that most claims were out of time and rejected the son’s later claims arising from the termination of his separate caretaking employment. The appeal challenged the statutory termination date, the contractual findings, the approach to race discrimination and alleged perversity.

1. Appeals dismissed. The Employment Tribunal’s conclusions were upheld.
2. For statutory purposes, the tribunal had to consider the date of termination specified by the applicable legislation, rather than determine the issue solely by common-law contractual principles. The relevant approach required communication of dismissal, or at least a reasonable opportunity for the employee to discover that employment had ended, following Gisda Cyf v Barratt [2010] UKSC 41.
3. Although the precise date identified by the Employment Tribunal might have involved an error of legal focus, the conclusion was plainly correct. The son had been instructed to return to work, declined to perform the cleaning work, ceased to receive pay for it and continued attending the premises as caretaker. In the circumstances, he must have known, or had a reasonable opportunity to discover, that the cleaning employment had ended. His claims brought in September 2008 were therefore substantially out of time.
4. The mother’s cleaning contract depended on the continued existence of her son’s cleaning contract. The Tribunal was entitled, on the evidence, to make that contractual finding. The appellate tribunal could not substitute a different contract merely because the practical arrangement had sometimes operated differently.
5. Section 54A of the Race Relations Act 1976 did not apply to victimisation claims. Nevertheless, the Tribunal was entitled to use comparable inferential reasoning, as recognised in Oyarce v Cheshire County Council [2008] 4 All ER 907 and King v Great British-China Centre [1991] IRLR 513. It was entitled to accept, on the balance of probabilities, that administrative inexperience or mistake, rather than race or anticipated litigation, explained the matters causing concern.
6. The Tribunal’s findings were not perverse. The appeal sought to reargue factual matters and did not show a conclusion that was wholly impermissible or manifestly wrong. The application for permission to appeal was refused.

• Employment Appeal Tribunal: dismissed the appeals from the Employment Tribunal’s decisions and refused permission to appeal.
• Employment Tribunal: found that the cleaning contracts ended on 20 July 2007, struck out or dismissed claims brought out of time, and rejected the son’s claims concerning his later redundancy dismissal.