Theatre Peckham v Browne: EAT 24 Jun 2014

EAT Victimisation Discrimination : Detriment – JURISDICTIONAL POINTS – Claim in time and effective date of termination
The Claimant claimed that she had been subjected to detriment for making a protected disclosure by putting forward a grievance about her treatment by another employee. The Tribunal considered 6 alleged detriments and found in the Claimant’s favour on detriments 2, 5 and 6 but against her on the others. The last detriment was the only one which occurred within the primary time limit. The Tribunal held that it formed the last of a series of acts and that the claim was, therefore, in time.
On appeal, held:-
1 The 6th detriment, as found by the Tribunal, was based on an act or acts which had not been pleaded or relied upon by the Claimant; the principle in Chapman v Simon applied; the finding in the Claimant’s favour could not stand.
2 The Respondents’ arguments that factual decisions of the Tribunal were perverse failed.
3 It had been open to the Tribunal to conclude that, by seeking to persuade the Complainant to leave on agreed terms, the Respondents had subjected her to detriment.
The Tribunal’s conclusion that the protected disclosure relied upon had caused or influenced the Respondents to act as they did was reached without considering the principle in NHS Manchester v Fecitt that where there was a dysfunctional situation and the employer claimed to have been acting to remedy it discrimination could only be inferred if the employer’s account was found to be false – as had not been found in this case.
5 The conclusion, on the basis of detriment 6 that there was a series of acts, so that all 3 detriments were not out of time was not perverse; but without detriment 6, which could no longer be relied upon (see para. 1 above), the claim was out of time. No case for an extension had been put forward or could, on the evidence, succeed.
6 Appeal allowed.

Jeffrey Burke QC
[2014] UKEAT 0154 – 13 – 2406
England and Wales

Employment, Discrimination

Updated: 05 December 2021; Ref: scu.527202