SUMMARY
JURISDICTIONAL POINTS – Claim in time and effective date of
termination
Contract workers banned – they claimed for discriminatory reasons
– from working again for the principal. Claim brought some 6 months after
this. Question was whether the ban was an act extending over a period, so as
to confer jurisdiction, or whether Employment Tribunal was entitled to hold (as
it did) that it was not. ET decision upheld. The decision was one of fact,
and here there was neither a misdirection in law nor perversity.
THE HONOURABLE MR
JUSTICE LANGSTAFF
Introduction
1.
Two short decisions by Judge Mahoney at the Watford Employment
Tribunal made in 2009 involve areas of employment law that have troubled the
courts persistently over some years. At a pre‑hearing review on
24 March 2009, the Employment Judge, in reasons delivered to the
parties on 21 July 2009, refused to accept jurisdiction so far as the
Appellants’ complaints that they had been racially discriminated against were
concerned. On 5 August 2009, he made an uncapped wasted costs order
to the extent of £40,508.42 against the solicitor who had appeared for the
Appellants before the pre‑hearing review.
2.
There are in form appeals against both decisions before me today, with
the permission of the Judge following a rule 3(10) application. However,
so far as the second is concerned, the Appellants are no longer represented by
their former solicitor. His personal appeal was one which, according to the
records at this Tribunal, he was notified would take place today. He did not
appear before the Employment Judge when the Employment Judge made his ruling
that the costs had been wasted by his unreasonable behaviour or negligent
conduct of the Appellants’ cases. He has not appeared before me today to argue
his appeal. That being the case, I have no proper basis for concluding that
the Judge’s reasoning, which was set out in full, directed in accordance with
the principles as they are properly to be understood and in respect of rule 48
of the Employment Tribunals Rules of Procedure 2004, was in any sense in
error. Therefore, having considered the Notice of Appeal which the solicitor
entered, and having considered the careful nature of Judge Mahoney’s
reasoning in this respect, I have not thought it necessary to call upon the
Respondents in resistance of the appeal; it not being pursued before me, and my
being satisfied that on the face of the papers there appears to be no obvious
error of law in the conclusions or approach of the Tribunal Judge, that appeal
must be dismissed.
3.
The argument as to the first appeal before me has however benefitted
substantially by representation from all parties; from Ms Platt, for the
Appellants, Mr Cooper, for the First Respondent, and Mr Adjei, for
the Second and Third Respondents, to whose submissions I pay tribute. The
issue upon which jurisdiction fell to be determined was whether the claims had
been brought in time. Section 7 of the Race Relations Act 1976
defined the context of the claims. They were claims brought by contract
workers maintaining under section 7(2) that it was unlawful for the
principal (First) Respondent to discriminate against a contract worker, (which
following the pre‑hearing review it was established each of the
Appellants was) “(a) in the terms on which he allows him to do that work or (b)
by not allowing him to do it or continue to do it.”
4.
For the purposes of such a claim, section 68(1) of the Race Relations Act 1976
provides that a claim must be brought in the Employment Tribunal within three
months, beginning with the date of the act complained of. Therefore the date
of refusal to permit a contract worker to work for a principal must be normally
within three months of the date of submission of originating application that
the refusal was discriminatory. That position is modified by
section 68(7) which provides materially so far as follows:
“For the purposes of this section
[...]
(b) any act extending over a period shall be treated as done at
the end of that period [...].”
5.
The Tribunal Judge set out the contrasting submissions of the parties to
him that there was here what was said to be a continuing act of discrimination
(that being alleged by the Appellants) as opposed to the Respondents’ case that
it was a “one‑off” act.
The underlying facts
6.
The Employment Tribunal did not hear evidence. It took certain facts to
be agreed and set them out at paragraph 4 of its decision. I need only
highlight some of those facts to show the context within which this appeal
falls to be decided. The First Respondent, Taylor Woodrow, employed workers
such as the Appellants through the agency of the Second and Third Respondents,
who in turn employed the Appellants through individual service companies whose
principals in effect were the Appellants themselves. At the site of work on
the Docklands Light Railway, where work usually took place at night, a
designated person called a PICOW (Person In Charge Of Works) was required. Temporary
PICOWs were frequently hired by the First Respondent from an agency for that
purpose. The arrangements under which they were provided included terms that
if they were found to be unsatisfactory they would be sent off site, and that
individual operatives might be ordered off site for misconduct, non‑compliance
with safety measures or failure to observe the terms of a framework agreement.
7.
Both the Appellants were PICOWs. The Tribunal set out that on
6 April 2008 they had been engaged through the Second Respondent to
work as PICOWs for Taylor Woodrow. When they arrived on site the first
Claimant was told by Mr Williams, a co-ordinator/supervisor in the
employment of Taylor Woodrow, that he was not going to be a PICOW that night,
and that if he was not happy he should go home. The second Claimant spoke to
Mr Williams to say that he was there to do crane duty but was told that
there was no crane duty available for him. The First Respondent’s case was
that that was because there had been an oversupply of PICOWs that night due to
a mix‑up in the bookings, and alleged that there was an altercation that
followed as a result of which, and as a result of the intemperate behaviour, it
was alleged, of the Appellants, they were no longer welcome on site.
8.
That information of course comes, one would have thought, only from the
ET3 filed by the Respondents, but it is nonetheless set out in the Tribunal
decision as an agreed fact, and there is no complaint that the Tribunal wrongly
identified those facts as having been agreed. The Tribunal went on to record
that Mr Williams had spoken to his manager and it was agreed that the
Claimants would be banned from the site and from any other DLR project because
of their behaviour. Thus when the Claimants attended on 7 April 2008
they were told they were banned from the site. On 18 April 2008 both
Claimants obtained a PICOW engagement at the same site, through the Third
Respondent on this occasion, but when they arrived they were again informed
they were banned from the site.
9.
The decision of the Tribunal is contained in three short paragraphs.
The first set out the submissions made on behalf of the Claimants that their
claims, having been brought on 6 August 2008 and therefore well over
three months after the 18 April 2008 when the last of those acts occurred,
were nonetheless within time. That was because it was said to be a continuing
act of discrimination to ban them from working for Taylor Woodrow.
Alternatively, the submission was to the effect that it would be just and
equitable to extend time if the first argument did not appeal to the Tribunal
Judge.
10.
The Judge set out the law in these terms:
“There is a distinction between a one-off act with continuing
consequences, which is not an act extending over a period, and a continuing
policy or series of acts extending over a period which amounted to an ongoing
state of affairs (see Sougrin v Haringey Health Authority
[1992] IRLR 416).
Conclusion
The Tribunal concludes the banning of Claimants from the first
Respondent’s site was a one-off decision with continuing consequences. The
last act complained of could therefore only be on 18 April 2008. The
claims for race discrimination were therefore brought outside the primary time
limit, which expired on 17 July 2008.”
11.
The Tribunal went on to say that there was no just and equitable basis
upon which to extend time. There has been no appeal against the exercise of
that discretion.
12.
Two observations need to be made: first, that no evidence was heard by
the Tribunal in reaching the conclusion set out at paragraph 10 above; secondly,
though the conclusion is tersely expressed, no challenge has been made before
this Appeal Tribunal upon a “reasons” basis.
The proper approach in law
13.
The question whether an act falls within section 68(7)(b) of the
1976 Act as being an act extending over a period is a question of fact for the
Employment Tribunal to determine. That is accepted by Ms Platt; it is, in
my view, uncontroversial. Therefore, for a decision as to whether there has
been a continuing act or alternatively, if this is the relevant distinction as
I am persuaded it is here, a one-off act, the decision of the Tribunal may only
be successfully impugned if the Tribunal has wrongly directed itself as to its
approach in law or has reached a conclusion that is perverse. Here, it is not
contended that the self‑direction in law contained in paragraph 14
is in error; it is contended by Ms Platt that nonetheless there was a
failure to appreciate what matters might legally constitute a continuing act as
opposed to a one‑off act. Otherwise, she accepts she has to surmount the
very high hurdle which is posed by the test of perversity to persuade this
Tribunal that it was simply not open to the Tribunal Judge here to conclude
that this was anything other than a continuing act or, in the words of the
statute, an act extending over a period.
14.
The approach, as it seems to me, that is urged by the cases and in
particular by Mummery LJ in the case of Hendricks v The Commissioner of Police for the Metropolis
[2003] IRLR 96 is this: that a Tribunal should approach the question of whether
acts are or are not continuing acts by looking at the substance of the case
before them (see paragraph 51). It might be useful to apply concepts of
policy, rule, practice, scheme or regime, but such examples of acts which
extend over a period should not be treated as a complete and constricting
statement of the indicia of an act extending over a period. The focus should
be on the substance of complaints. In the case of Hendricks
itself the relevant question was whether what was alleged was an act extending
over a period, as distinct from a succession of unconnected or isolated
specific acts for which time would begin to run from the date when each
specific act was committed.
15.
To focus on asking of what in substance complaint is made in a case in
which there has been no evidence inevitably takes one to the originating
application before the Tribunal, as it may be explained or amplified (if the
Tribunal permits it) by the submissions of the Claimants’ representative before
it. Therefore I look here to see what in essence was the complaint brought
first by Mr Okoro. For convenience in the argument before me
Mr Cooper, for Taylor Woodrow, invited my attention to what are described
as amended details of the Claimant’s complaint. The complaint in so far as
amended was by decision of the Employment Judge not permitted to go before the
Tribunal; the amendments were refused. The appeal against that decision was dismissed
by HHJ McMullen QC upon a rule 3(10) hearing, having been dismissed
earlier by another appellate Judge on the sift. The appeal against that
decision is not pursued. Accordingly, in looking at the allegation on the
basis of which the decision as to whether there was a continuing act had to be
made, I can have regard only to the unamended parts of the originating
application.
16.
On 6 April 2008 Mr Okoro complained that he turned up for
work, greeted Steve Williams, and told him that he had come for PICOW
duty. He was told, snobbishly it is said, that he was not going to be a PICOW
that night, and if he could not take it he should go home. Mr Okoro told
him later that he was going home. On the next day, as he came to work at the
same site and was entering the yard, he heard Mr Williams shout, “stop him
- that is the one.” (That might be thought to be a decision entirely personal
to Mr Okoro, and not directed at any characteristic of him which he might
share with others such as being black.) He was told then by someone
(effectively, a doorkeeper) that he was not required at the yard. When that
was queried Mr Williams brought out a white sheet of paper and said that
his (Mr Okoro’s) name was included in the list of people who would not
enter or work in the yard any more. Mr Okoro asked him why; that did not
have a proper response, but he was simply told that if he had any further
questions he could contact the night manager, but as far as he
(Mr Williams) was concerned, Mr Okoro was not going to work there any
more.
17.
On 8 April he was told by a manager for the Second Respondent that
he had been banned from any of the Taylor Woodrow projects. On
18 April 2008 he went under contract with the Third Respondent to the
yard, and to the normal meeting place. When he was seen by Mr Williams,
he was told that he and one other were not supposed to work on the LIVO Yard
site from which they had been banned, but they should wait for some minutes for
him to reconfirm that. He then asked them to leave. Mr Okoro expressed
the belief (paragraph 29) that the decision to ban him from Taylor
Woodrow’s sites was motivated on racially discriminatory grounds. It should be
noted that in the unamended claim there is reference to “white lads” receiving
work, but no reference to the ethnicity of the workforce as a whole, nor to the
racial identity of one other (Giles) who was also excluded at the same time.
18.
The submissions in the case of Mr Harris Okenwa contained in
the amended complaint in his case, which likewise was permitted to proceed only
in so far as unamended, were to the same effect. He too set out the events of
6 April 2008 - that Mr Williams had said he did not ask for them
(that is, him, Mr Okoro, a man called Giles and another Mr Okoro) and
asked who had sent them. He went away and returned saying that he did not
think that Mr Okenwa and the others would be working there that night, but
if they wanted to hang around they could hang around until the shift ended; if
they did not want to hang around, they could go. On 7 April 2008 he
(Mr Okenwa) told Mr Foster of the Second Respondent what had
happened. On 8 April 2008 he was called by Mr Foster to say
that Taylor Woodrow did not want Mr Okenwa back on the job at Livo Yard.
He had worked, as it happens, on the 7 April 2008. On
18 April 2008 he, together with Mr Okoro, had gone to the yard
through the agency of the Third Respondent and was told he would not be working
that night. He too expressed in similar terms in paragraph 29 his belief
that the decision to ban him from Taylor Woodrow sites was motivated on
racially discriminatory grounds.
19.
In summary, therefore, the complaints as made in the originating
applications focussed heavily on the conduct of Mr Williams, an employee
of Taylor Woodrow, for whose discrimination, if any, they would be liable. It
relied upon the inference to be drawn from the fact that each of the Appellants
had been assured there would be work for them at the site; each saw others who
were white having work; each were told that they were not welcome that night,
without any further reason being given; and were told, for no apparent reason,
that they were being banned from the site. The events of
7, 8 and 18 April 2008 followed closely in time and
again were focussed upon the behaviour of Mr Williams and his maintenance
of the earlier view that he had expressed.
20.
It seems plain from the Employment Tribunal decision that the Judge felt
able with the assistance of the parties, who were professionally represented,
to take a broader view of what facts could be agreed for the purpose of the
determination which he made. No complaint is made before me as to that, but I
have thought it right in the circumstances to go back to the originating
applications which, as I say, appear to focus heavily on the activities of one
employee in the service of a large organisation on a few days in
April 2008.
The submissions
21.
For the Appellants, Ms Platt does not seek to distinguish their
cases; nor has any counsel before me. Although they are separate cases and
worthy therefore of separate consideration, I have thought it appropriate in
this case to deal with them together. She submits that this is not and could
not properly be said to be a case of the Sougrin or Amies v
Inner London Education Authority [1977] ICR 308 EAT sort, in which an
act of discrimination has continuing consequences, and it does not become an
act extending through a period simply because of the effect of those
consequences. Amies was a case in which the applicant had
complained that she had been denied the job of departmental head of the school
at which she taught by reason of discrimination against her on the grounds of
sex; a man had been appointed instead. In consequence she went on receiving a
lesser salary than he did. She maintained that she was entitled to bring a
claim outside the three‑month period. In giving the decision of the
Tribunal Bristow J said:
“Like any other discrimination by act or omission, the failure
to appoint her, and the appointment of him, must have continuing consequences.
She is not the head of the department; he has been ever since
13 October 1975. But it is the consequences of the appointment which
are the continuing element in the situation, not the appointment itself [...].”
22.
But he then went on to observe this:
“So, if the employers operated a rule that the position of head
of department was open to men only, for as long as the rule was in operation
there would be a continuing discrimination and anyone considering herself to
have been discriminated against because of the rule would have three months
from the time that the rule was abrogated within which to bring the complaint.
In contrast, in the Applicant’s case clearly the time runs from the date of
appointment of her male rival. There was no continuing rule which prevented
her appointment. It is the omission to appoint her and the appointment of him
which is the subject of her complaint.”
23.
In Sougrin, a black staff nurse was graded E upon regrading
of Health Service nursing staff. So too were both a white and a black
colleague. The three nurses appealed against that decision, seeking to be
placed in grade F. The appeal of the white colleague was successful;
Ms Sougrin’s was not. She complained that she had received, and was still
subject to, an unfair grading. She alleged that this was an act of
discrimination that extended over a period. The Tribunal held that the
discriminatory act complained of was the decision to dismiss her appeal against
her grade, which was not a continuing act, although its consequence was that
she continued to be paid wages at grade E which were some £2,000 a year less
than they would have been on grade F. An appeal against that decision was
dismissed both by this Tribunal and on further appeal by the Court of Appeal,
whose Judgment is reported at [1992] IRLR 416. Balcombe LJ said
(paragraph 13) that in his judgement:
“The analogy between the Amies case and the present case
is close. Mrs Amies was not appointed head of department and continued as
deputy head, presumably at a lower salary. Ms Sougrin was not upgraded to
grade F and continued at grade E at a lesser salary. There was no rule that a
woman could not be promoted to head of department. It is not suggested here
that Haringey had a rule that a black nurse could not be promoted to grade F.
It is the refusal to upgrade Ms Sougrin and the upgrading of Mrs Mobey
which is the subject of Ms Sougrin’s complaint.”
24.
He contrasted that with the position that pertained in Calder v
James Finlay Corporation Ltd [1989] IRLR 55, where a
woman had applied to her employers for a mortgage subsidy which by policy they
granted to male employees over the age of 25. When she reached 25 and applied
for such a subsidy she was refused. She complained within three months of leaving
her employment that she had been discriminated against by refusing her that
subsidy on the grounds that she was a woman. The Industrial Tribunal there
held it had no jurisdiction to entertain the complaint because it had not been
made within three months of the date on which she had last been refused a
mortgage, but the Appeal Tribunal allowed the appeal. It had been pointed out
that, there being a scheme under the rules of which a female could not obtain
the benefit of the mortgage subsidy, she was discriminated against on a
continuing basis.
25.
Barclays Bank PLC v Kapur [1991] IRLR
136 itself was a similar case, involving as it did five applicants of Asian
origin who had been employed by banks in countries in east Africa from whence
they had come to the United Kingdom in the 1970s, becoming employees of
Barclays Bank in the UK. Their previous service with east African banks had
not been taken into account in computing their pension entitlement under the
bank’s pension scheme. The terms of their contracts of employment made it
clear that that refusal applied specifically to Asian employees. When they
subsequently discovered that employees of European origin with similar bank
service in Africa had been credited with that service in computing their pension
entitlement, they complained. The decision in their Lordships’ House was that
there had there been a continuing act of discrimination. Lord Griffiths had
considered the difference between a one‑off decision and a continuing
state of affairs: this was the latter.
26.
It was argued by Ms Platt that the facts of this case came within
the category of those cases such as Calder and Kapur
as one in which there was a continuous state of affairs. She drew my attention
to the case of Rovenska v General Medical Council
[1997] IRLR 367; [1998] ICR 85 CA. That was a case in which a doctor who had
qualified in Czechoslovakia sought registration by the GMC to work as a medical
professional within this jurisdiction. By rule of the GMC she was not regarded as
possessing the professional knowledge, skill, experience and proficiency in
English necessary for a limited registration unless she had first passed or
been exempted from a test conducted by the Professional and Linguistic
Assessments Board (PLAB). She twice failed that test. She attempted
unsuccessfully to secure exemption. Her final attempt was in 1991. When it
was pointed out to the GMC that she had passed an MSc in medical microbiology
in English, and a reference was given as to the quality of her English, the GMC
gave the same response. She complained that she had been discriminated against
on the grounds of her national origin. Although the Industrial Tribunal
rejected her complaint, this Tribunal allowed an appeal, and a further appeal
to the Court of Appeal was dismissed. It was a case of indirect
discrimination, but it was argued by counsel for the doctor (see
paragraph 28) that the terms upon which the GMC was prepared to confer
limited registration were just as much a continuing act of discrimination as
was the maintenance of a discriminatory regime of the type the courts had had
to consider in cases like Kapur. The determination was that if
the regime was inherently discriminatory then on every occasion that the GMC
refused to allow her to have limited registration without first taking a PLAB
test it would be committing an act of unlawful discrimination. The refusal of
the exemption made on the last occasion, which was less than three months
before a complaint was made to the Tribunal, was one such occasion, and for
that reason the appeal was dismissed.
27.
She draws my attention further to the case of Coutts & Co PLC v Cure
[2005] ICR 1098. That was a case in which what fell for consideration were the
provisions as to presentation within time of a complaint brought under the Fixed
Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
Those provisions as to time are not in precisely the same terms as those that
fall for consideration here. It is accepted by all counsel that the observations
made for the Tribunal by HHJ McMullen QC, so far as they deal with a
continuing act at paragraph 28, are obiter. Nonetheless, they
comprise a useful overview of that which the cases had described. He said
(paragraph 28):
“The factual circumstances in which discrimination [might occur]
have been illustrated in the authorities as falling into one of the following
categories.
(1) A one‑off act of discrimination, such as a refusal to
promote, which has continuing consequences for this disappointed candidate.
(2) An act extending over a period of time, constituting a rule
or policy, by reference to which decisions are made from time to time.
(3) A series of discriminatory acts, whether or not set against
a background of a discriminatory policy.”
28.
He went on to observe that:
“Time runs for a category (2) complaint when the discriminatory
rule is abrogated; and it will also run in the case of the specific application
of the rule to any given employee, eg in refusing promotion, from the date of
that application.”
29.
It is submitted that this case should properly have been categorised as
falling within the second category and not, as the Tribunal categorised it, in
the first.
30.
The Respondents observe in respect of this authority that in
paragraph 28(2) HHJ McMullen QC referred to an act, “[...]
constituting a rule or policy, by reference to which decisions are made from
time to time.” That must, it is argued by the Respondents here, be seen and
read in the light of the observations of Mummery LJ in the case of Hendricks
as not to be treated as a “complete and constricting statement of the indicia
of an act extending over a period”. The focus is really upon whether there is
any ongoing situation or continuing state of affairs which is discriminatory.
Subject to that, it is said that the Coutts case is a useful
summary.
31.
Finally, in review of the authorities, my attention was drawn to the
case of Cast v Croydon College [1998] IRLR 318.
In that case the appellant sought a jobshare, which she had been refused. She
resigned her post and submitted an Industrial Tribunal application within three
months of that resignation. The Industrial Tribunal found that any act of sex
discrimination occurred when the request to jobshare or work part-time was
first refused, and that what had occurred thereafter was a repetition of the
request and refusal. This Tribunal dismissed her appeal. She appealed to the
Court of Appeal, who allowed her appeal. They did so upon the basis that both
the Industrial Tribunal and this Tribunal had erred in holding that the appellant’s
complaint that the respondents had discriminated against her on grounds of sex
by refusing her part‑time work after she returned from maternity leave
was out of time, because her request to work part‑time was first refused
prior to her maternity leave, and her originating application not submitted
until after she returned from that leave, when further requests for working
part‑time were again refused. The principle that was established was
that the application of a discriminatory policy or regime pursuant to which
decisions may be taken from time to time was an act extending over a period.
There could be a policy even though it was not of a formal nature or expressed
in writing and even though it was confined to a particular post or role. I
should emphasise those last words for reasons which will become apparent.
32.
The case was treated on appeal as one in which there had been a
complaint relating to a number of decisions; each one of which amounted to a
fresh refusal of a fresh request to work part-time. Auld LJ said this
(paragraph 24):
“As to a ‘one‑off’ discriminatory act, it is important to
keep in mind that it may be an application of an established discriminatory
policy or it may be inherently discriminatory regardless of any such policy.
If the complaint is of a specific discriminatory act, the fact that it may have
been an application of an established policy adds nothing for this purpose.
The starting point is, therefore, to determine what is the specific act of
which complaint is made.”
(25) The fact that a specific act out of time may have
continuing consequences within time does not make it an act extending over a
period; see Amies [...] and Sougrin [...].
(26) As to an act extending over a period, the authorities make
clear – at least in the case of discrimination in the field of employment [...]
– that it is the existence of a policy or regime, not a specific act of an
employer triggering its application to the complainant, that matters.”
33.
At paragraph 34, he added this:
“Regardless of the claimed existence of a policy and of whether
the claim relates to a feature or employment or access to a profession, I can
see no reason to introduce into this exercise new material as a criterion of
whether a second or subsequent decision is ‘an act complained of’. Where a
discriminatory policy is alleged, it may be that its continuing existence up to
the time of complaint, or within three months before it, is enough to found
jurisdiction in claims about access to a profession as it is in employment
claims. But that is not for determination in this case. Policy or no, a
decision may be an act of discrimination whether or not it is made on the same
facts as before, providing it results from a further consideration of the
matter and is not merely a reference back to an earlier decision.”
34.
Ms Platt argues that this is not here a case simply of reference
back to an earlier decision; that is, the decision to ban. In light of the
authorities, she submitted that the Claimants had the option to claim that a
policy was discriminatory each time it was applied to them, or to claim that
the policy itself was discriminatory; that there was a continuing policy, and
therefore potentially a continuing act of discrimination. That policy still
continues, she argued.
35.
For the Respondents, Mr Cooper argues first that the court should
have careful regard to the nature of the complaints, just as Auld LJ, in
the passage I have last cited, urged. There was no complaint, he submits, that
there was in this case any continuing policy; certainly in so far as the
originating applications are concerned, that observation appears well founded,
though a policy might be derived from the facts. He accepted that it might not
be necessary for a claimant to set out in terms in their originating
application that they were alleging that there was a policy or rule against
them if the facts could fairly be construed to that result.
36.
He argued that the focus of the originating applications was on the
events of 6 April 2008 and thereafter one event, in effect. He went
on to argue that this was a decision that was individualised so far as the
Claimants were concerned. There was no suggestion that Taylor Woodrow operated
any generalised policy to disadvantage those who were not white within their
workforce; it was a decision with specific reference to these two Appellants.
That, he submitted, mattered. Thus he argued that in the case of Kapur,
Barclays Bank had operated a policy which affected anyone who might be subject
to it. Kapur might have been the Appellant in the particular case, but the
policy was one which was general to all in her position. The same could be
said of Calder, where the mortgage subsidy was denied on the
basis of gender and not on a basis specific to Mrs Calder herself. It was
true too of the case of Rovenska, where there was a general
policy that applied to the claimant’s disadvantage just as it would to anyone
in her position. Contrast that, he suggested, with the cases of Amies
and Sougrin, in both of which the decision, said to be a
continuing act, had been one individualised to the employee concerned.
37.
The right way to analyse the case, he submitted, was therefore to look
at what was at the root of the claim. He argued that the Tribunal here had
properly directed itself; it had, in the light of that proper direction, come
to a conclusion that was open to it, and indeed, he submitted, was self‑evident.
The root of the claim was an individualised act by the employer, not anything
that could fairly be described as a policy general to all, at least of the same
sort as that relied upon in the cases to which he made reference. The case of Cast
demonstrated that even where there was a series of acts it might all be
referable to one decision. There was a distinction made there (see
paragraph 34) between acts that involved a further consideration of the
matter as opposed to merely being a reference back to an earlier decision. The
former might be a fresh act of discrimination and not form part of a series of
acts; the latter was simply a further manifestation of what had been a one‑off
act.
38.
He urged that here there was an act with consequences, the consequence
being a refusal to re-engage, and that this approach, bearing in mind the
nature of the allegations in the originating application, was in line with the
intendment of the Race Relations Act, which was to prevent stale
claims by applying limitation provisions to them, thus avoiding employers being
faced with allegations which had become more difficult to defend by reason of
the passage of time.
39.
Mr Adjei was in the happier position on behalf of the Second and Third
Respondents of not facing any consequence from a finding one way or the other
on the complaint against Taylor Woodrow, since it was not at all evident that
any case could properly be made against the Second or Third Respondents. That
proposition has not been challenged here by Ms Platt; nonetheless, he
volunteered some helpful observations, to which I shall come in due course.
Discussion
40.
In the course of argument two analogies featured. The first arose from asking
what in principle distinguished the present case from that of an employee who
was dismissed from his employment by reason of racial discrimination against
him. Such a case would involve continuing consequences for that employee. In
the practical world he could not sensibly apply for his old job back having
once been dismissed. Ms Platt recognised that that would be a one‑off
act notwithstanding consequences not very different from those that the two
contract workers here suffered. The analogy may suffer from the fact that
those who are dismissed from employment have a contract which is terminated.
Here, the allegation is not one of losing a contract, which itself was not
terminated save on an individual occasion, but of being banned from effectively
offering oneself for future contracts; akin more, perhaps, to an “application
for a job” case than a “removal from office” case.
41.
The second analogy, which might be said to work the other way, would be
that of the publican who on the grounds of his ethnicity bans a would‑be
drinker from ever setting foot in his public house again. Would that be a one‑off
act (a decision to issue the ban), or would it in truth be a continuing
proscription of that drinker from the public house premises thereafter?
Mr Adjei argues that the analogy with dismissal is apposite. It is how
the ordinary person would understand the position; anyone dismissed or anyone
who was sent home as a contract worker and told not to come back again would be
in exactly the same position. The characteristics would be that it would be a
decision individually reached, not of general application to the workforce as a
whole, and it would still maintain its character as an act effectively
committed by the first sending home despite requests thereafter by the employee
to return; just as the worker who had been sacked from employment would be met
by the words, “no, you’ve been dismissed,” so too would the contract worker.
He argued that by contrast the ban could in some circumstances be a continuing
act, but where the ban is issued on one occasion and any further attempt is met
by the words, “you have been banned,” as here occurred, it would appear, from
the allegations when the Appellants returned to challenge Mr Williams,
this would be a reference back to the original decision just as was anticipated
in the Cast case. The way in which the Applicants had put their
case at the pleading stage was to assert one-off actions in April 2008 and
not to assert a policy. The echoes of the acts might continue, but those were
referable to the original decision.
42.
There are aspects, as it seems to me, of the submissions made by
Mr Cooper that I am unable to accept. I cannot accept that it is correct
to hold that because an application of an alleged policy is to an individual
and not to the workforce generally, that it necessarily becomes a one-off act
whereas if it had been applied to the workforce generally it would have been a
continuing one. I cannot accept that because it seems to me the focus has to
be upon the statute in the first place. The statute does not use the words
‘policy’, ‘rule’ or ‘regime’; as Mummery LJ pointed out in Hendricks,
it asks simply that an act extending over a period be identified by a Claimant
if it is to fall within section 68(7)(b). I see no reason in principle
why that should not be an act relating to an individual, as it plainly relates
to the individual in question by section 68, or why such acts should be
restricted to those applying to the workforce as a whole. The right given by
statute is an individual and not a collective right. I do, however, accept
that it is relevant to take into account the fact that the policy, if a policy
is referred to, which is alleged is one which applies only in the case of an
individual. This might as a matter of fact incline a Tribunal in its fact‑finding
exercise to conclude that there is no general policy, and therefore to look
more critically to see whether in truth what is happening in the case before it
is the manifestation of a one‑off set of acts, or a continuing state of
affairs.
43.
Secondly, I cannot accept too readily the argument that Mr Cooper
suggests that this is a case in which what is alleged are the consequences of
an earlier act. In Amies and Sougrin, from which
this submission comes, the act of discrimination was of a very different
character from the continuing consequences alleged. A failure to promote on
the one hand, and a failure to re‑grade on the other, were both different
in character from the lower level of pay which was consequential. Here, the
allegation is made under section 7 of the 1996 Act; it is that the
employers did not allow the contract worker to work or continue to work. The
consequence alleged here, if it is a consequence, is of exactly the same nature
and character as the act which is said to give rise to it. This, it seems to
me, is something which the Tribunal is entitled to put into the assessment in weighing
this case toward the act being a continuing one rather than being a single act
with continuing consequences, for it is of the nature of consequences that they
are in general distinct from the acts in relation to which they are
consequential.
44.
Although I have those reservations about Mr Cooper’s arguments, I do not
accept Ms Platt’s submissions that the Tribunal was in error in failing to
appreciate what might constitute a continuing act as opposed to a one-off act.
The Tribunal had to direct itself by reference to the statutory test, and
determine the issue as one of fact. I accept in general terms the force of the
points that Mr Adjei makes here as to the analogy which might (though
tentatively) be drawn between the situation here and that of dismissal from
employment. It seems to me, however, that the matter cannot be resolved by
analogy; it must be examined as a matter of principle. The essential question
is whether the allegations which a claimant seeks to put before a Tribunal
focus upon events at one point in time, albeit spread over a few days, or
whether they focus upon that which Mummery LJ in Hendricks
called a continuing state of affairs. To term something a ‘ban’ might involve
either. Here, however, the focus in the originating applications is undeniably
upon a short sequence of events in April 2008. The latest of those was on
18 April 2008, and indeed that on 8 April 2008, was by
reference to a banning which had occurred as a matter of decision on
6 April 2008. There was no further act since for well over the three
months following 18 April, and for the further period that elapsed before the
applications here were first made to the Tribunal. The allegation (in the
unamended claim) was not of a continuing act.
45.
Such was the focus of the allegations in the claim and, I infer, from
the facts set out as agreed before the Tribunal (see paragraph 4) that I
am bound to conclude that it was at least open to the Tribunal to think that
here the real complaint being made to it was of the behaviour of
Mr Williams as an employee of Taylor Woodrow, when he behaved towards the Claimants
in a manner that they thought might well be discriminatory on the nights of
6, 7, 8 and 18 April 2008, and that they were not
maintaining that these were acts which in any real sense could be equated to
the type of regime, policy or rule identified in some of the cases, and
therefore to find as a matter of fact that what was alleged was not an act
extending over a period such as to confer jurisdiction. The acts complained of
extended over a period, perhaps, but the period ended on
18 April 2008 and did not extend thereafter.
46.
Accordingly, as it seems to me, I come back to where I began this
Judgment. Though necessarily because of the argument this decision has been of
much greater length, I have concluded that the decision of the Tribunal tersely
stated was one that it was entitled to reach. It reached it on a proper self‑direction
of law. I cannot say that it was perverse. This appeal must fail.
