Charles v Tesco Stores Ltd

The appeal concerned the correct application of the three month time limit for presenting a race discrimination complaint under the Race Relations Act 1976 (see section 68) and whether the Employment Tribunal (ET) had erred in law when it treated the identification of the last act complained of as a contested primary fact rather than as a matter of construing the claimant's ET1. The claimant alleged that the final discriminatory act was the offer and subsequent withdrawal of compensation at a stage 2 grievance meeting on 17 August 2010. The ET had treated 4 June 2010 as the last act and found the complaint out of time; the Employment Appeal Tribunal (EAT) upheld that approach.

The Court of Appeal held that the correct question was the meaning of the ET1 as at the date it was presented and that, on a fair and reasonable reading, the ET1 did include a complaint of continued detrimental treatment at the 17 August meeting. The ET and the EAT therefore erred in law by construing that issue as a primary factual finding and concluding the claim was out of time. The appeal was allowed.

Background and facts: Mr Gregory Charles, a black fork lift truck driver employed by Tesco, lodged a dignity-at-work grievance on 16 June 2009 against a colleague. After delay in the grievance procedure he was orally informed on 4 June 2010 of a stage 1 outcome which he perceived as adverse. He appealed on 5 June 2010. A stage 2 outcome meeting occurred on 17 August 2010 when Mr Neil Harvey investigated and upheld the grievance; Mr Charles alleges that an offer of compensation made at that meeting was later withdrawn because of his prior tribunal involvement, amounting to continuing discrimination and victimisation.

Procedural history: The ET held after a Pre-Hearing Review that time began to run on 4 June 2010 and that the ET lacked jurisdiction because the claim form (ET1) was presented outside the three month limit; it refused to extend time. The EAT dismissed Mr Charles's appeal as being a challenge to a factual finding. Permission to appeal to the Court of Appeal was initially refused on paper but later granted on renewed application.

Nature of the claim and relief sought: Complaint of race discrimination (including victimisation) and a determination that the claim was presented in time to the ET. The immediate relief sought on appeal was a ruling that the ET erred in law on the time limit/jurisdiction issue so that the complaint of discrimination dated 17 August 2010 was within time.

Issues framed by the Court:

• Whether the last act complained of occurred on 4 June 2010 or on 17 August 2010 (offer and withdrawal of compensation).
• Whether the ET and EAT erred in treating the identification of the complaint as a primary fact rather than as a matter of construing the ET1.
• Whether, on a fair and reasonable reading of the ET1, the claimant had pleaded a complaint of continued discriminatory treatment or victimisation arising on 17 August 2010.

Court’s reasoning: The Court of Appeal analysed the ET1, including handwritten sections and surrounding documents, and concluded that the form as a whole, read fairly and reasonably, included an allegation that compensation offered at the 17 August meeting was later rescinded because of the claimant's prior tribunal involvement. That allegation amounted to continuing discriminatory treatment or victimisation and therefore was a last act within three months of the ET1 presentation. The Court emphasised that deciding what complaints are made by an ET1 is a matter of construction of the pleading (a point of law) rather than solely a finding of primary fact; consequently the ET and EAT had erred in law by proceeding as they did.

Subsidiary findings and other points: The Court noted that whether the claimant can prove the substantive allegations at a full hearing is a separate matter and was not decided on the present appeal. The judgment also observes the value of oral examination in clarifying the meaning of documents.

This was an appeal and it is allowed. The Court of Appeal held that the Employment Tribunal and the Employment Appeal Tribunal erred in law by treating the identification of the last act complained of as a primary factual finding rather than as a matter of construing the ET1. On a fair and reasonable reading the ET1 included a complaint of continuing discriminatory treatment arising from the 17 August 2010 meeting, so the claim was presented within the three month time limit.

Employment Tribunal: Pre-Hearing Review ruling (29 October 2010) that the claim was out of time (time starting 4 June 2010) and that extension of time was not just and equitable; Employment Appeal Tribunal (Langstaff J) dismissed the claimant's appeal (19 January 2012, UKEAT/0386/11/SM) on the basis it raised a factual finding; initial paper refusal of permission to appeal to Court of Appeal (2 May 2012); renewed permission granted by Rimer LJ (20 July 2012); appeal heard in the Court of Appeal and allowed (14 December 2012).