Charles v Tesco Stores Ltd

For limitation purposes, identifying the complaints made in an employment tribunal claim form is a matter of construction, not a primary finding of fact. The question is what the form conveyed to a reasonable reader in its surrounding circumstances when presented. A fair reading may disclose a later act of discrimination or victimisation even where earlier materials focused on delay or an earlier grievance outcome. If that later act falls within the statutory period, the complaint is in time. Whether the alleged treatment can ultimately be proved is a separate merits issue.

Mr Gregory Charles, a black forklift truck driver employed by Tesco, complained of race discrimination and victimisation in the handling of a workplace grievance. The Employment Tribunal held that the last alleged discriminatory act occurred on 4 June 2010, found the claim presented on 29 October 2010 out of time, and declined to extend time. The Employment Appeal Tribunal dismissed his appeal under UKEAT/0386/11/SM, treating the identification of the complaint as a factual matter.

The central issue was whether the ET1, read fairly as a whole, included a complaint that compensation offered after the grievance was upheld on 17 August 2010 was withdrawn because of Mr Charles’s earlier employment tribunal proceedings.

Appeal allowed. Lord Justice Mummery gave the judgment, with Lord Justice Jackson and Lord Justice Lewison agreeing.

1. Under s. 68 of the Race Relations Act 1976, the three-month limitation period ran from the act complained of, or, for an act extending over a period, from the end of that period.
2. The identification of the complaints made in an ET1 was a matter of construing the document. The relevant question was what the ET1 meant to a reasonable reader in its surrounding circumstances when presented. It was not a primary finding of fact based on evidence from the claimant. The appeal was therefore not limited by the stringent test applicable to a perversity challenge.
3. On a fair and reasonable reading, the ET1 did more than complain about delay and the stage 1 grievance outcome on 4 June 2010. Its references to the stage 2 meeting, the withdrawal of compensation after the grievance had been upheld, and the alleged connection with previous tribunal proceedings identified a complaint of later detrimental treatment, potentially amounting to victimisation under s. 2 of the Race Relations Act 1976.
4. The alleged act on 17 August 2010 was within three months of presentation of the ET1. The Employment Tribunal and the Employment Appeal Tribunal therefore erred in law in treating 4 June as the last act complained of. The Court of Appeal decided only the limitation issue; whether the allegations could be proved remained for the merits hearing.

1. Court of Appeal (Civil Division) [2012] EWCA Civ 1663: Appeal allowed. The court held that the ET1 included a complaint concerning the events of 17 August 2010.
2. Employment Appeal Tribunal UKEAT/0386/11/SM: Appeal dismissed on 19 January 2012. The issue was treated as a factual finding and the ET was held entitled to find that the complaint did not include discriminatory withdrawal of compensation.
3. Employment Tribunal: Following a pre-hearing review, held on 29 October 2010 that the complaint was out of time and that it was not just and equitable to extend time.