England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIIL DIISION)
ON APPEAL FROM THE ORDER OF THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2
		Thursday, 8th March 2001

1. LORD JUSTICE BROOKE: This is an appeal by Krishan Tyagi from an order of the Employment Appeal Tribunal on 4th April 2000 when it dismissed his appeal from the order of an employment tribunal on 13th April 1999 which held that it had no jurisdiction to consider his complaint of racial discrimination against the BBC World Service. Lord Justice Mummery granted permission to appeal on the single issue that Mr Tyagi was in time for making a complaint on 16th July 1998 because he was complaining not only of a one-off act of discrimination on 18th April 1997 but also of a continuing policy that was discriminatory towards him and other people in a similar position on racial grounds.
2. This point turns on the proper interpretation of Section 68 (7) (b) of the Race Relations Act 1976. This section provides for the familiar 3-month primary limitation period for applications of this kind. Sub-section (7) (b) provides:

"(7) For the purpose of this section -

.....

(b) any act extending over a period shall be treated as done at the end of that period."

3. Mr Tyagi was employed by the BBC and applied for the post of producer in the Hindi section of the BBC World Service on two separate occasions, one in June 1996 and the other in December 1996. His application for the post advertised in June was turned down in August 1996, and his application for the post advertised in December was turned down on 18th April 1997, following an interview on that day. His employment with the BBC ceased in July 1997 and his dismissal was the subject of separate proceedings which were started in October 1997 and compromised in February 1998.
4. On 24th March 1998 the applicant wrote to the respondent complaining of his treatment at the interview in April 1997. His complaints were, essentially, that there was personal prejudice against him and, more particularly, that there was a racially discriminatory policy at the BBC which meant inevitably that he would be rejected. The respondents replied to him in July 1998 denying that the selection board was prejudiced and setting out the reasons why he was not thought to have the strengths required for the job.
5. On 16th July 1998 he presented an originating application to the employment tribunal alleging that he had suffered race discrimination through the respondents' selection process for the BBC World Service post. The application was a year over the 3-month time limit provided by the statute. In view of the delay the matter proceeded to the employment tribunal on a preliminary issue as to whether it had jurisdiction to hear the dispute. At a preliminary hearing on 13th April 1999 the employment tribunal dismissed his application to extend the time limit for the application and held that it had no jurisdiction to consider his complaint.
6. The applicant appealed to the Employment Appeal Tribunal. At a preliminary hearing it was directed that the appeal should proceed to a full appeal hearing on two grounds only. The first point was that the tribunal had erred in dismissing the argument about continuing discrimination. The second point related to the tribunal's refusal to exercise its discretion to extend time. Following a substantive hearing on 3rd April 2000, the Employment Appeal Tribunal, presided over by Judge Collins, dismissed his appeal and refused his application for permission to appeal to the Court of Appeal.
7. Lord Justice Mummery granted permission to appeal to this court on the first ground only. So far as that ground was concerned, the employment tribunal dealt with the matter quite briefly. It said that if there was continuing discrimination in the policy as operated by the respondent, this was not a matter for the employment tribunal to address in isolation. It was necessary for the applicant to show that he had personally been the subject of discrimination. This could only be shown by him applying for a job and being refused such a job. It was insufficient for him to say that the policy operated by the respondents put him off making such application. The Employment Appeal Tribunal, for its part, considered the effect of cases on this point to which I will refer in due course. It held that this case law had no application in this case. In paragraph 10 of the judgment of the Employment Appeal Tribunal Judge Collins said:

"It is easy to see in the case of an employee that an employer's policy may have a continuing discriminatory effect. In the case of someone who is not an employee and has to rely on s.4(1), the case for racial discrimination has to depend upon the arrangements which are made for the purpose of determining who should have employment, the terms on which that employment is offered or a refusal or omission to offer that employment. These are not continuing acts. These are one-off acts and therefore the line of authority which Mr Tyagi asks us to follow simply has no application. It might have been different, although we express no concluded opinion on the point, if Mr Tyagi had continued to be an employee of the BBC throughout the relevant period because in that case, Mr Tyagi might have been able to rely on s.4(2)(b) discrimination in the way the employer afforded him access to opportunities for promotion, transfer or training, but that is not the case with which we are concerned today. So that in our judgment the first ground of appeal fails."

8. The importance of the distinction made by the Employment Appeal Tribunal will become apparent on consideration of the material provisions of the Race Relations Act 1976. Section 1 states:

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons."

9. Section 4 provides:

"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -

(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b) in the terms on which he offers him that employment; or

(c) by refusing or deliberately omitting to offer him that employment.

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment."

10. The definition section - Section 78 - provides -

"`employment' means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly."

11. The complaints made by the applicant in his original application are set out in paragraphs 4 to 7 of a response he lodged with the employment tribunal. In short, he complains that the recruitment and employment policies of the BBC World Service -

"are inherently racially discriminatory against the ethnic minorities of Britain."

and that it appears that the -

"World Service has one policy for recruiting English speakers and another for recruiting non-English speakers for similar jobs. Though the World Service advertises vacancies in its non-English sections in the British newspapers every six months, it has no intention of recruiting any one living in this country against those advertisements."

Points are then made in strong terms. At paragraph 6 he says:

"6. The BBC World Service is so blatant in its discrimination against the ethnic minorities of this country that it does not bother even to follow its own well laid out recruitment procedures such as giving all candidates the same test, having the same members in the interview board and asking all the candidates the same questions. While recruiting candidates from India, they certainly did not follow the full procedure.

7. Thus, the interview board's personal prejudice against me was further able to prevail upon because of the racially discriminatory recruitment practice. Actually, they reinforced each other."

12. Mr George has taken a point that if what is complained of is the place from which successful applicants come, then prima facie discrimination of that kind is not covered by the Act. Mr Tyagi retorts that the definition of discrimination on racial grounds is further defined in Section 3 (1):

"`racial grounds' means any of the following grounds, namely colour, race, nationality or ethnic or national origins."

13. He submits that if one is discriminating against people of Indian origin who have settled in this country as against people of Indian origin who remained in India there may well be a discrimination on racial grounds as so defined. For the purposes of this appeal it is not necessary to make any decision on that point. The Employment Appeal Tribunal made no findings in relation to his substantive grounds of complaint because it ruled that it lacked jurisdiction.
14. Mr Tyagi founds his complaint on a passage in the judgment of Mr Justice Bristow in Amies v Inner London Education Authority [1977] ICR 308 which subsequently received the approval of the House of Lords. It is necessary to look quite carefully at that decision. It was a decision made shortly after the Sex Discrimination Act 1975 came into force. The applicant was a female art teacher and deputy department head who applied in 1975 for a job as department head at the school at which she taught. In September 1975 a man was appointed instead. The relevant provisions of the Sex Discrimination Act 1975 came into force on 29th December. On 1st January 1996 the applicant made a complaint to the Industrial Tribunal on the basis that by appointing a man the employers discriminated against her by reason of her sex contrary to Sections 1 (1) (a), 4 (1) and 6 (1) (c) and (2) (a) of the Act. For all material purposes Section 6 (1) and Section 6 (2) of the Sex Discrimination Act can be compared with Section 4 (1) and Section 4 (2) of the Race Relations Act. On page 311 Mr Justice Bristow posed the question -

"Was the discrimination a single act, or an `act extending over a period,' a continuous act?"

He said:

"There is nothing in the definition section of the Sex Discrimination Act 1975 or the sections to which that refers to require us to give any other than the ordinary common sense meaning to the provisions of the Act. The applicant's complaint here is that by not appointing her, and by appointing a man with lesser qualifications, the employers have unlawfully discriminated against her. She herself has in our judgment given the right definition of the `act of discrimination' of which she complained to the tribunal under section 63 (1).

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 head of the department; he has been ever since October 13, 1975. But it is the consequences of the appointment which are the continuing element in the situation, not the appointment itself.

That there may be discrimination by an act `extending over a period,' that is, a continuing act, is clear from section 76 (6) (b). This provides that for the purpose of calculating the period within which a complaint must be presented to the industrial tribunal `any act extending over a period shall be treated as done at the end of that period.' An illustration of what the legislature had in mind as an act extending over a period can be seen in the provisions of section 6 (1), which makes it: `unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman - (a) in the arrangements he makes for the purpose of determining who should be offered that employment ..... '

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 when 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."

15. It is to be noted that in this passage Mr Justice Bristow makes no distinction between Section 6 (1) and Section 6 (2) of the Act. Of course, in relation to the particular employment the discrimination would be a single act of which anybody - whether a prospective employee in-house or a prospective employee not previously employed by the school - could make complaint provided that complaint was made within 3 months of the discriminatory act. The language of what is Section 4 (1) in a Race Relations Act context makes that clear, because what is being complained about is the unlawfulness of discrimination in the arrangements which the person makes for the purpose of determining who should be offered that employment. This does not refer to employment generally but to the particular employment that is being offered. What Mr Justice Bristow then goes on to discuss is the position of the deputy head of a department who is unable - because there is a continuing discriminatory rule - ever to have the prospect of promotion to be head of her department. That, in the context of the Race Relations Act, is a Section 4 (2) complaint, namely that she is being denied access to opportunities for promotion which would be available.
16. In the early days of the Sex Discrimination Act Mr Justice Bristow did not think it necessary to spell out the continuing rule which would be prejudicing her. It would be a rule prejudicing her because of the fact that she was employed in that establishment and she was denied the opportunity of promotion. When the post of head of department next came up on the open market and if the school continued with that discriminatory rule, then anybody who was denied the appointment on that occasion would have just grounds of complaint if the complaint was made within 3 months.
17. Mr Tyagi has shown us how in Calder v James Finlay Corporation Ltd [1989] IRLR 25 Mr Justice Browne-Wilkinson, giving the judgment of the Employment Appeal Tribunal, made a similar ruling in relation to the denial of access to a female employee of a preferential mortgage subsidy scheme which favoured male employees. It was held that so long as the applicant remained in the employment of these employers there was a continuing discrimination against her. Applying the same logic as applied by Mr Justice Bristow in Amies, it said:

"The rule of the scheme constituted a discriminatory act extending over the period of her employment and is therefore to be treated as having been done at the end of her employment. Accordingly her application was within time.

We receive support for this view from the dictum of the Employment Appeal Tribunal in Amies v Inner London Education Authority (1977) 2 AER 100. In that case this Tribunal expressed the view (obiter at p. 102h) that there would be continuing discrimination within s.6 (1) of the Act if there was a rule that the appointment in question should be open to men only. In our view the same position obtains under s. 6 (2)."

18. In my judgment what Mr Justice Browne-Wilkinson has not paid attention to is that in the main paragraph on which Mr Tyagi relies no distinction is made between Section 6 (1) and Section 6 (2). In my judgment, the relevant passage in Amies refers to the potential of a complaint available to an employee in the school of being denied access to opportunities for promotion. Although the House of Lords in Barclays Bank Plc v Kapur referred with approval to both the dictum in Amies and this dictum in Calder without referring, in particular, to the passage in Mr Justice Browne-Wilkinson's case which I have just cited, in my judgment, that approval takes the matter no further, because there was no specific concentration on the particular issues now before us.
19. Mr Tyagi has also referred us to Cast v Croydon College [1998] IRLR 318 which is another case involving an employee.
20. Lord Justice Auld in that case held that -

"Application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time is an act extending over a period.

.....

there were several decisions which indicated the existence of a policy that the holder of the appellant's post should work full time. Therefore, the complaint was of a policy constituting an extended act up to the time she left her employment and, by virtue of s.76 (6) (b), was to be treated as done to her up to that time."

21. That again links the application of a discriminatory policy with the period of the employment as a continuing act which, no doubt, will continue vis a vis other employees after the date of the termination of the particular applicant's employment. It is only an act of which she can make complaint on the basis she is discriminated against within the meaning of Section 1 of the relevant Act if she makes complaint within 3 months of ceasing the employment.
22. Mr Tyagi submits that it is wrong for the law to make any distinction between the position of an employee and the position of someone else who is affected by a potentially discriminatory employment policy who, he submits, ought to be able to make a complaint at any time if he is appropriately qualified for a job even if there is no job on offer. We pressed him on this point, but he submitted that so long as the disgruntled applicant felt that he could prove that the discriminatory policy would discriminate against him in the future if the employer in question offered a job, then he was able to complain even though there were no incidents relating to a particular employment of which he could make complaint within the 3-month period, and although there was no question of him being denied the opportunity for promotion or anything of that kind.
23. In my judgment, this is not the proper way to approach the interpretation of the Act. As was pointed out during the course of argument, under Section 1 (1) (b) of the Act, "a person discriminates against another in any of the circumstances relevant to the purposes of any provision of this Act if he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other," but which also has three other characteristics set out in the sub-section. That is a specific application of a requirement or condition.
24. Mr George showed us Section 28 of this Act which provides:

"(1) In this section `discriminatory practice' means the application of a requirement or condition which results in an act of discrimination which is unlawful by virtue of any provision of Part II or III taken from Section 1 (1) (b) or should be likely to result in such act of discrimination to the persons to whom this would apply including persons of any particular racial group or as regards which there has been no occasion for applying it.

(2) A person acts in contravention of this seciton if and so long as -

(a) he applies a discriminatory practice; or

(b) he operates practices or other arrangements which in any circumstnces would call for the application by him of a discriminatory practice."

25. In my judgment he submitted correctly that it is these provisions that deal with the kind of situation about which Mr Tyagi may be concerned. Section 28 (3) makes provision for proceedings in respect of a contravention of the section. A general discriminatory practice which, among other things, would be likely to result in an act of discrimination to the person to whom it is applied, including persons in any particular racial group, and as regards which there has been no occasion for applying it, is policed only by the Commission for Racial Equality. The way in which Section 1 bites on the actual treatment of an applicant or the actual application of a requirement or condition adverse to an applicant, in my judgment, means that it does not bite on a discriminatory practice which is not in action at all vis a vis a particular applicant if he is not employed by the employer at all so as to be denied access to the opportunities and benefits or otherwise treated disadvantageously in the ways mentioned in Section 4 (2), and if he is not being treated unfavourably by not being offered a job because of a discriminatory practice because there is no job on offer.
26. For these reasons, in my judgment, the passage in Judge Collins' judgment which I recited sets out clearly and correctly the law which is to be applied in a case of this kind, and I would dismiss this appeal.
27. LORD JUSTICE LONGMORE: I agree. There is nothing I can usefully add.
28. SIR CHRISTOPHER SLADE: I also agree.
Order: Appeal dismissed