Madhavan v Great Western Hospitals NHS Foundation Trust (Victimisation Discrimination)

A protected disclosure may materially influence detrimental treatment through an organisational chain of command even where the final decision-maker lacks personal knowledge of the disclosure. The tribunal must, however, identify an evidential basis for that causal conclusion.

For limitation purposes, discrete decisions fixing pay are not a continuing discriminatory act merely because they have continuing financial consequences. A tribunal considering whether it is just and equitable to extend time must give adequate reasons and consider all relevant circumstances, including the apparent merits where material to its discretion.

The Claimant, a consultant ophthalmologist employed by the Respondent NHS trust, appealed parts of an Employment Tribunal judgment sent to the parties on 29 March 2016.

The Tribunal had upheld two protected-disclosure detriments, including an implied threat in a July 2014 letter, but found that later alleged detriments were not materially influenced by her disclosures. It held the whistleblowing complaint out of time.

It also held that allegations concerning the Claimant's pay, acting-up allowance and pensionable remuneration arose from decisions made in 2005 and 2008. It rejected her race-discrimination claim as out of time and declined to extend time on just and equitable grounds.

The appeal concerned causation in a management chain, whether the pay allegations disclosed a continuing act, and whether the Tribunal had adequately reasoned its refusal to extend time.

1. The appeal was allowed in part. The appeal against the dismissal of the protected-disclosure detriment complaint was dismissed. The race-discrimination limitation issue was remitted to the Employment Tribunal for reconsideration of whether it was just and equitable to extend time.

2. Assuming in the Claimant's favour that the principle discussed in Western Union Payment Services UK Ltd v Anastasiou applied, detrimental treatment may in principle be caused by a protected disclosure through a management chain of command. The final actor need not personally know of the disclosure if it materially influenced the treatment. The Tribunal must nevertheless explain, by reference to evidence, how that influence operated.

   The Tribunal had considered that principle and was entitled to find no evidence that the later actors had acted on directions from persons motivated by the disclosures. Read as a whole, its reasons adequately identified the actual reasons for the challenged acts. The omission of an express reference to HR advice on one term of reference was immaterial, since the Tribunal found that the investigator proposed it and the medical director agreed it.

3. The pay claim concerned two discrete decisions in 2005 and 2008. Their later consequences did not transform them into a continuing act. This was not a case in which a discriminatory policy was itself maintained, nor one involving numerous acts constituting an ongoing discriminatory state of affairs. The Tribunal therefore made no error in holding that the complaint was presented out of time unless an extension were granted.

4. The Tribunal had a wide discretion to extend time on a just and equitable basis and had to consider all relevant circumstances. Its single-sentence refusal gave inadequate reasons. It had also erred by taking irrelevant matters into account on the comparator issue, and had not adequately explained why it accepted the Respondent's detailed pay evidence over the Claimant's. Since the merits could bear on the discretionary extension, the limitation issue required reconsideration.

• Employment Appeal Tribunal: Allowed the appeal only on the adequacy of reasons for refusing a just and equitable extension of time for the race-discrimination complaint, and remitted that issue to the Employment Tribunal.
• Employment Tribunal (Bristol): Judgment sent to the parties on 29 March 2016. It held the protected-disclosure complaint out of time and rejected the race-discrimination complaint on limitation grounds.