Appeal No. UKEAT/0280/09/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 December 2009

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MISS M FRANCO	APPELLANT

BOWLING & CO SOLICITORS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR M GULLICK
(of Counsel)
Instructed by:
Messrs Lyons Davidson Solicitors 
Park House
87 Burlington Road
New Malden  
KT3 4QP	
For the Respondent	MS A MORGAN
(of Counsel)
Instructed by:
Messrs GSC Solicitors
31-32 Ely Place
London  
EC1N 6TD	

SUMMARY
SEX DISCRIMINATION:
CONTINUING ACT
An Employment Judge at a CMD has no power to limit a claim of sex discrimination, said to be of a continuing act extending back for the 6 years of the Claimant’s employment, to the last 2 years. 

HIS HONOUR JUDGE McMULLEN QC
Introduction
1.	This case arises out of case management orders given by Employment Judge Ferris resulting in Reasons on 5 May 2009 (at I think Stratford E).

2.	The Claimant was represented by Mr Matthew Gullick of Counsel, the Respondent, a firm of solicitors, Bowling & Co, well known in this city, represented by Ms Fry, a solicitor who today instructs Ms Adrienne Morgan.  The effect of the case management order was to place a limit on the retrospective reach of the Claimant’s allegations of sex discrimination against the Respondent.

3.	The Claimant appealed.  The Notice of Appeal was first considered by HHJ Reid QC, who decided not to take summary action but to send the matter to a preliminary hearing.  At the hearing Underhill P, sent the matter to a full hearing, indicating in his notes that the first ground was clearly arguable and the second seemed to have some merit.

4.	The two grounds are that the judge did not have power at a case management hearing to make the order that he did, and the second was that he considered various factors which were irrelevant.

The legislation
5.	Under the Employment Tribunal Rules 2004, a CMD is available to determine a number of matters but it cannot determine civil rights and obligations, nor make an order as to the entitlement of a party to bring proceedings or strike out a claim (see the combination of Rules17.2, 18.7, 13.1(b)).

The issues
6.	The Claimant contends that she has been discriminated against, on the grounds of her sex, by the Respondent throughout the period of her employment which was for 6.2 years, from 14 January 2002 until 28 March 2008.  She also contends that she was unfairly dismissed.

7.	The effect of the judge’s order is “to limit” the claim “to the last 24 months of her employment” (see paragraphs 8 and 11 of the judge’s order).  The Claimant wishes to contend that throughout her career with the Respondent she was subject to discrimination and she should be allowed to present that to the Tribunal.

8.	On behalf of the Respondent it is contended that the Employment Judge did not make an order determining the civil rights of the Claimant nor strike out her claim, which remains one based upon an allegation that throughout her employment she suffered discrimination.  That is an issue to be tried.

Discussion and conclusions
9.	In careful written arguments by both counsel, there is reference to the powers of a judge at a CMD.  The judge was alert to the possible trespass on the territory of a full three-person hearing at a full merits hearing, for he did not allow time limit points to be taken at a PHR, which is the traditional venue of certain time limit points.  Generally, however, parties are enjoined to take the advice of Mummery LJ in Metropolitan Police Commissioner v Hendricks [2003] ICR 530 and not to take preliminary points on time but to leave those to a full hearing.

10.	His advice was also that in difficult cases of discrimination careful case preparation should be done, so that the issues were identified, and that claimants should focus on the issues that are real and live.  With respect, that remains good advice and should be borne in mind carefully by the Claimant in this case.

11.	I accept the submission of Mr Gullick that what the judge has done here is to limit the nature of the Claimant’s case.  Put in simple terms, the Claimant is contending that there was a glass ceiling, so that throughout her career she was not to be made a salaried partner.  On the judge’s finding at the moment she will have to make that point in respect only of a period which begins on 28 March 2006.  That is both unreal and unfair.  The impact on an employment tribunal of a complaint that spans 6.2 years is going to be very different from one that is said to last for two.  The Claimant’s power to put that point is severely curtailed.  In effect, as Mr Gullick correctly argues, the Claimant’s claim to make a case about the regime under which she worked extending back to six years, has been struck out and replaced by one limited to two.

12.	If these are all individual claims, with their own self-contained time limits, there is a mechanism for determining whether they are out of time (let us assume they are) and whether discretion should be exercised.  But that is a very different exercise from that which is involved here, because the Claimant’s case is that throughout her career with the Respondent she suffered sex discrimination.  As I pointed out in Coutts v Cure [2005] ICR 1098, claims can be made by a woman that she has to live under a glass ceiling - she has to work in a regime which is discriminatory - and she can also make a claim in respect of any individual application of that regime to her, provided on that occasion she is within time.

13.	The impact of this is that, in the details of the amended claim, which are included in the judge’s order, there are allegations which have to be tested as against the whole of the Claimant’s career, and at present she is hampered in her presentation of the evidence.  If there is not a continuing act a decision will be made at the full hearing, in which case the Claimant will have to rely on the discretion of the Employment Tribunal in respect of any individual act occurring more than three months prior to the presentation of the claim.

14.	In my judgement what occurred in this case was not within the jurisdiction of an Employment Judge sitting alone conducting a CMD.  I have every sympathy with the Respondent and with the judge in seeking to focus the Claimant’s mind, and thus the future employment tribunal, on the real issues in the case, and that can be done.  But, the Claimant is entitled to say, “I suffered discrimination for 6.2 years” and not to have it curtailed so that she may only allege the last two years.

15.	The second part of the appeal as to factors taken into account therefore is not a ground which I need to deal with.

16.	In these circumstances the appeal is allowed and the simple approach to it is to treat the words the Claimant herself uses, and are replicated by the judge in his Judgment, as meaning what they say, for example “throughout the Claimant’s employment” means “since the day she joined”.  I will allow the appeal and allow the treatment of the Claimant’s case as going back, where she so contends, to the start of her employment.

17.	Those parts of the Employment Judge’s order should be set aside insofar as they relate to the 24 months point. [ACAS conciliation encouraged].