England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
EMPLOYMENT APPEAL TRIBUNAL
LANGSTAFF J

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/12/2012

Lord Justice Pill :

1. This is an appeal against a decision of the Employment Appeal Tribunal ("EAT"), Langstaff J, dated 30 June 2011. The EAT dismissed appeals by Mr Azubike Okoro and Mr Harris Okenwa ("the appellants") against decisions by Employment Judge Mahoney, dated 21 July 2009 at an Employment Tribunal held at Watford, whereby racial discrimination claims by the appellants were held to be out of time and that it was not just and equitable to extend time. Other orders were made which are not subject to appeal and neither is the finding on just and equitable.
2. The issue is whether, in circumstances to be described, time began to run, for the purposes of section 68(1) of the Race Relations Act 1976 ("the 1976 Act"), on 18 April 2008.

Facts

3. Taylor Woodrow Construction Ltd ("the first respondents") are a construction company and had an engineering contract to construct platform extensions and other civil engineering works associated with capacity enhancement on the DLR Network with Docklands Light Railway ("DLR"). It involved them working at a number of sites, including a site known as the Limo Site. Coyle Personnel Plc ("the second respondents") and Mane Contract Services Ltd ("the third respondents") are employment agencies and provided services on the site by means of Agency Agreements. The Employment Tribunal found that the appellants were not employees of any of the respondents and that their claims were as contract workers under section 7 of the 1976 Act.
4. Section 7(1) of the 1976 Act provides:

"This section applies to any work for a person ("the principal") which is available for doing by individuals ("contract workers") who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal."

Section 7(2) makes it unlawful for the principal, in relation to work to which the section applies, to discriminate against a contract worker in specified respects. There is in this case the further dimension, as will appear, that the appellants were not employed by the second and third respondents, with whom the first respondents (the principal) made contracts, but by a limited company set up by the appellants. It has not, however, been suggested that section 7 does not apply in such a situation.

5. The Framework Agreements between the first respondents on the one hand and the second and third respondents on the other were found to have been in substantially the same terms. These included, in the case of the second respondents:

"1.1 Coyle Personnel Plc will supply temporary operatives to TWCL. These temporary operatives will be under the control, direction and supervision of TWCL, but will remain temporary operatives of Coyle Personnel Plc:

1.2 TWCL will be responsible for the quality of work executed by temporary operatives.

1.3 It is Coyle Personnel Plc's responsibility to ensure that all temporary operatives supplied are trained, appropriately qualified, experienced and competent in their trade. To that end, it is expected that Coyle Personnel Plc will recruit with care, train as necessary (including safety awareness training, which is considered a pre-requisite), maintain up to date CV's or similar career history and record of qualifications, and be able to provide such information on request . . .

. . . .

1.11 Any labour operatives found unsatisfactory will be sent off site and will not be charged if dismissed within 4 hours of arrival on site. Replace to be made within one day of advice to Cole Personnel Plc office or representative.

1.12 Individual temporary operatives may be ordered off site by TWCL for misconduct, non-compliance with safety measures, or failure to observe the terms of this Framework Agreement. Only the hours worked until dismissal will be paid for.

. . . .

2.5 Coyle Personnel Plc shall be responsible for paying its temporary operatives in accordance with all current Employment Laws and shall indemnify TWCL . . . .

3.1 TWCL shall pay to Coyle Personnel Plc:

3.1.1. The agreed rate of each temporary operative is as per the following table:

. . . .

3.1.6 Coyle Personnel Plc shall submit detailed invoices on a weekly basis. Each invoice shall identify the operative's name, trade, agreed hourly rates and hours claimed and shall have the relevant endorsed Timesheet attached."

6. At paragraph 4.5, the Employment Tribunal found:

"The terms set out in the Framework Agreements were then incorporated into separate contracts for the provision of particular numbers of workers with particular skills to work on particular projects for particular durations. The first respondent would raise an individual's sub contract order form for each separate contract which would then be accepted by the second or third respondent respectively providing the relevant workers. The second or third respondent respectively would then invoice on a monthly basis to the first respondent and would be paid accordingly."

7. The Employment Tribunal also found at paragraph 4.7:

"The second and the third respondent respectively had standard terms of engagement pursuant to which the claimants would be contacted for individual assignments, which would give rise to the individual contracts between the limited company set up by the claimants and the second and third respondents on their standard terms."

8. On 6 April 2008, the appellants were engaged through the second respondents to work at the site. Mr Williams, the first respondents' co-ordinator/supervisor on site said that no appropriate work was available. There had, the first respondents contend, been a mix-up in the bookings. At about 1.20 am, the appellants followed Mr Williams to his office and, the respondents contend, "proceeded to intimidate him by surrounding him, raising their voices and behaving aggressively towards him". Mr Williams spoke to his manager and it was agreed that the appellants would be banned from the site, and from any other of the first respondents' DLR projects, because of their behaviour. When they appeared at the site on the following day, they were told that they were banned from the site. On 18 April, the appellants obtained an engagement at the site through the third respondents. When they arrived, they were again told that they were banned from the site. The claim is that the ban imposed on both appellants was racially motivated. No application was made by the appellants to the first respondent for work on the site after 18 April 2008.
9. The question at issue, as identified by the EAT, was "whether the ban was an act extending over a period, so as to confer jurisdiction, or whether the Employment Tribunal was entitled to hold (as it did) that it was not".

The Employment Tribunal and EAT

10. Oral evidence was not called before the Employment Tribunal and the issue was whether the appellants were entitled to pursue a claim presented to the Tribunal on 6 August 2008, that is more than 3 months from the imposition of the ban. It is accepted and asserted by the appellants that, in their claim forms, they made clear that their target was the decision to ban them and not a series of isolated incidents. The Tribunal stated, at paragraph 15:

"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."

The Tribunal also held that it was not just and equitable to extend time and that finding was not subject to appeal.

11. Section 68 of the 1976 Act provides, in so far as is material:

"(1) An Employment Tribunal shall not consider a complaint under section 54 unless it is presented to the Tribunal before the end of -

(a) the period of three months beginning when the act complained of was done;

(b) . . ."

Section 68(7) provides, in so far as is material:

"For the purposes of this section –

. . .

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

. . ."

The present complaint is under section 54.

12. On behalf of the appellants, it was submitted that the ban extended over a period. It was still in force when proceedings were instituted and the claim was brought within time. The respondents contend that the imposition of the ban was a one-off decision, albeit one with continuing consequences. The EAT concluded:

"44. . . . 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 . . . 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."

Submissions

13. On behalf of the first appellant, Mr O'Brien drew a distinction between one-off acts such as dismissal or the refusal of a higher grading and continuing acts such as a policy of disadvantaging a category of employees in computing their pension entitlement.
14. Mr O'Brien accepted that a decision to dismiss an employee, or to promote one employee rather than another, is a one-off act. The financial implications of such decisions, which may be long term, are distinct from the decisions themselves and should be regarded merely as consequences of the decisions. On the other hand, a decision to behave in a certain way, now and in the future, towards a person or category of persons creates a continuing state of affairs and constitutes a continuing regime. Subsequent behaviour pursuant to that decision will be an expression of it and would not be distinct from it. A decision to refuse to permit work on site at that time and at any time in the future came into the second category.
15. Mr O'Brien relies on the decision of the House of Lords in Barclays Bank Plc v Kapur [1991] ICR 208. The applicants claimed discriminatory treatment in calculating pension entitlements. It was held that such pension provisions amounted to "a continuing act lasting through the period of employment" (per Lord Griffiths at 215B). Lord Griffiths also stated, at page 215C:

"The matter can be further tested by taking the case of an employer who before the Act was passed paid lower wages to his coloured employees than to his white employees. Once the Act came into force the employer would be guilty of racial discrimination if he did not pay the same wages to both coloured and white employees. If he continued to pay lower wages to the coloured employees it would be a continuing act lasting throughout the period of a coloured employee's employment within the meaning of subsection (7)(b)."

16. Lord Griffiths, with whom Lord Bridge of Harwich, Lord Templeman, Lord Ackner and Lord Lowry agreed, approved the decision of the EAT in Calder v James Finlay Corporation Ltd [1989] ICR 157 where Browne-Wilkinson J stated, at page 159F:

"By constituting a scheme under the rules of which a female could not obtain the benefit of the mortgage subsidy in our judgment the employers were discriminating against the applicant in the way they afforded her access to the scheme. It follows, in our judgment, that so long as the applicant remained in the employment of these employers there was a continuing discrimination against her. Alternatively it could be said that so long as her employment continued, the employers were subjecting her to 'any other detriment' within section 6(2)(b)."

17. Reliance is also placed on the decision of this court in Rovenska v General Medical Council [1998] ICR 85. The GMC took a series of decisions refusing an applicant for limited registration to practise as a medical practitioner on the basis of a policy requiring the claimant to pass a language test. The court held that the applicant's relevant complaint had been made within three months of the refusal of her last application for exemption and was not time barred so that other considerations did not rise for decision. However, Brooke LJ, with whom Nourse LJ and Roch LJ agreed, stated, at page 96A:

"If the regime which the GMC had selected for its exemptions policy was inherently discriminatory, as the applicant maintained, then on every occasion that it refused to allow her limited registration without first taking the PLAB test it would be committing an act of unlawful discrimination contrary to section 12(1)(b) of the Act."

He stated at page 92 F-H:

"It was an important part of his case that the appeal tribunal failed to take into account the fact that the cases on which it relied were all decided in relation to section 4 of the Act of 1976 or section 6 of the Sex Discrimination Act 1975, which for all material purposes is in identical terms. In those cases the discriminatory act complained of is not a one-off act of refusal: it arises out of the way in which the employer affords his or her employees access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or out of the employer refusing or deliberately omitting to afford the employees access to them. In these circumstances the courts have held that, if an employer adopts a policy which means that a black employee or a female employee is inevitably barred from access to valuable benefits, this is a continuing act of discrimination against employees who fall into these categories until the offending policy is abrogated."

18. Mr O'Brien referred to the categorisation of His Honour Judge McMullen QC in Coutts & Co Plc and Anr v Cure & Anr [2005] ICR 1098, at paragraph 28:

"The factual circumstances in which discrimination occurs 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 the 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.

A complaint in respect of category (1) must be made within three months of the act or, where specific statutory provision is made for a deliberate omission to act, within three months from the date when the relevant less favourable treatment was 'decided on'. 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. Time runs in a category (3) complaint where there is specific statutory provision for this, from the last in the series of acts."

Mr O'Brien submitted that the present case comes within category 2.

19. Mr O'Brien submitted that a ban is a continuing or on-going state of affairs even if there is no continuing relationship with the party imposing the ban. What was referred to as a black list of persons who would not be employed on the site, or a black list maintained by an employer, would have the same effect. A refusal to employ would be an application of policy. The ban remains in force and is a continuing or on-going act. It was open to the appellants more than three months after the ban was imposed, and at any time during its existence, to apply to work on site without being out of time in complaining about the ban.
20. Mr Okenwa, who appeared in person, referred to the serious effects of the consequences of the ban. It was a continuing act because it was not open to him to approach the first respondents, or other parties, for work on the site.
21. Mr Cooper submitted that focus is required on "the act complained of" within the meaning of section 68(1) of the 1976 Act (Lord Donaldson of Lymington MR in Sougrin v Haringey Health Authority [1992] ICR 650, at 658G). His main submission on behalf of the first respondents was that the Tribunal or court must focus on the imposition of the ban. That was plainly a one-off decision. He added that a submission that a fresh refusal to permit someone to work on site following an application to do so (there was no such application in this case) would require reliance on the imposition of the ban, the act complained of. In the absence of an on-going relationship or contract between the first respondents and the appellants, to which any policy or rule, the basis for a continuing act, could attach, the ban was the act complained of.
22. In Lucey v EC Sames & Co Ltd & Anor (EAT/0965/00) His Honour Judge Peter Clark considered, at paragraph 15, the case of a contract worker. He stated:

"What then is the position in the case of a contract worker? We have invited submissions from the parties' advocates on this question. It seems to us that where an employer, here Sames, supplies a contract worker, the Appellant, to the principal, Nat West, the refusal by the principal to permit the Appellant to continue with the work gives rise to a potential claim of unlawful discrimination. However, once the worker has been barred by the principal and the employer makes no further attempt to supply that worker under the contract made with the principal, but instead assigns him to other duties as an alternative to terminating his employment, the protection provided by Section 7 ceases."

23. In Cast v Croydon College [1998] ICR 500, complaint was made of a series of decisions refusing an application to job share or work part-time, which was alleged to be the result of a sexually discriminatory policy. The final claim was made within 3 months of the resignation from the employment and the case was decided on that basis. (The complaint had been made under section 4(1) of the 1976 Act but it is agreed that there is no material distinction between section 4(1) and section 7.)
24. However, Auld LJ, with whom Robert Walker LJ and Otton LJ agreed, went on to consider what was "the act complained of". Auld LJ drew a distinction between a later decision merely referring back to an earlier decision and a fresh decision. He stated, at page 513H:

"To acknowledge that there may be successive acts of discrimination in this way does not negate the time bar provided by section 76, provided that decision makers make clear in responding to further requests whether they have reconsidered the matter. If they have, time begins to run again; if they have not, and merely refer the complainant to their previous decision, no new period of limitation arises. However, where the successive acts are such as to indicate and/or are pursuant to a policy or regime, different considerations arise."

25. At page 515, Auld LJ accepted that, on the Tribunal's findings of fact, there were "clearly several decisions of which the applicant was complaining as indicating the existence of a discriminatory policy". He added, at page 515B:

"Accordingly, I would hold that on the primary facts found by the industrial tribunal the applicant had clearly complained of a policy constituting an extended act up to the time she left her employment within section 76(6)(b) and that, by virtue of that provision, it was to be treated as done to her up to that time."

In the present case, there was no reconsideration of the ban and none was requested.

26. Mr Cooper submitted that the question whether consequences of an act are linked risks becoming a metaphysical question. The courts ought not to indulge in over-analysis as he submits the EAT did at paragraph 32 by stating, for example:

"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."

Attempts to draw such a distinction, or point to the lack of such a distinction, would be a distraction from the task of the Tribunal. Tribunals should consider what, in substance, is the act complained of. Tribunals may be trusted to recognise what is an "act" and what is merely a consequence. An "ordinary commonsense meaning" must be given to the provisions of the Act (Bristow J in Amies v Inner London Education Authority [1977] ICR 311A).

27. While it is possible to formulate a decision to dismiss an employee as creating a policy or state of affairs in which the employee will henceforth no longer work for the employer, in substance, dismissal is clearly a one-off decision and the state of affairs resulting is the consequence of that decision. In this case, also, it was submitted, it is the consequences that are the continuing state of affairs and not the act complained of.
28. In Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530, Mummery LJ stated, at paragraph 52:

"The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period.' I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be side-tracked by focusing on whether a 'policy' could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is '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."

It was submitted that a policy or analogous arrangement should not be forced into existence. No gloss should be based on the statutory language. There was a specific act, the ban.

29. Mr Cooper submitted that the present situation has a close analogy with dismissal by an employer. No distinction should be drawn. In the case of contract workers, there is a requirement for a new contract for work each time the contract worker appears on site. The act complained of, within the meaning of Section 68(1), is the imposition of the ban. In the present circumstances, it would, he submitted, be absurd and inconsistent with the statutory purpose if, following a ban, a claim could be brought at any time. Events years earlier might have to be investigated.
30. The limitation provisions are designed, Mr Cooper submitted, to prevent stale claims, though with provision for an extension of time where that is just and equitable. On the appellants' case, the Employment Tribunal would be obliged to hear a complaint, whenever brought, even though the claim stands or falls by reference to a decision in April 2008. That would be contrary to the policy and purpose of the statute, it was submitted.
31. Mr Cooper submitted that an application to work on site would not revive the opportunity to complain about the ban. The relevant act was a one-off decision to terminate all relations with the appellants as agency workers on its sites. In a tripartite agency arrangement a ban is simply the mechanism by which the principal effects a final termination of its relationship with the particular workers; it is a dismissal in all but name. A fresh contract would be necessary if the relationship was to be renewed.
32. It was accepted by the appellants that on 18 April there was merely a reference to the original decision that they "had been banned". No contract or regular working relationship remained. In the absence of any ongoing contract or relationship, it cannot be said, it was submitted, that an action of the first respondents could operate as an "act" of discrimination.
33. Mr Cooper relied on the approach of Brooke LJ in Tyagi v BBC World Service [2001] IRLR 465, where the selection process for a World Service post was claimed to be racially discriminatory. The application to the Tribunal was made a year after the employment had ceased but the claimant sought a ruling on the basis that the discriminatory policy would discriminate against him in the future if the employer offered a job. Brooke LJ, with whom Longmore LJ and Sir Christopher Slade agreed, rejecting that argument, stating, at paragraph 25, that the act:

"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."

There is no on-going relationship within which it can be said that the protection bites in relation to the appellants, it was submitted. The subject matter of the complaint is no longer "in action". Turning away the contract worker after more than three months would at most constitute an independent act of discrimination requiring a fresh 'act' of discrimination to be complained of. In Calder Browne-Wilkinson J confined the relevant period to that in which the applicant "remained in the employment of those employers", as did Lord Griffiths in Kapur.

34. For the second and third respondents, Mr Gill adopted the submissions of Mr Cooper. He submitted that a distinction should not be drawn between a dismissed employee and a banned contract worker.

Conclusions

35. I substantially accept the submissions of Mr Cooper as already summarised and can state my conclusions briefly.
36. I accept Mr Cooper's central and basic point. The act complained of, within the meaning of section 68(1) of the 1976 Act, was the ban imposed by the first respondents in April 2008. In section 7 terms, it was a ban by a principal on contract workers. That was a one-off act and was equivalent, in that respect, to dismissal of an employee by an employer. It terminated the relationship between the principal and the contract workers and time ran from the date the ban was imposed.
37. Continuing acts were found both in Kapur and Calder but were held to continue only as long as the employment continued. That was also the approach in Tyagi. Just as, in such a case, time begins to run with the termination of the employment, so, on the ban, time began to run from the date of the ban. In the absence of a continuing relationship between the parties, there was no continuing state of affairs on which a complaint could be based.
38. The ban was imposed on 7 April and it is accepted that subsequent statements on 8 April and 18 April were reiterations of a ban already imposed. The latest date on which time could begin to run was 18 April. If a section 7 claim based on the issue of the ban was to be made, it was necessary to make it within three months of that date.
39. Mr Cooper rightly also drew the attention of the court to nuances which have arisen in other cases in which the distinction between a one-off act and a continuing act has been considered. It is not suggested that there has in this case subsequently been a reconsideration of the ban in the way that reconsideration of alleged acts of discrimination was contemplated in Cast.
40. There having been no further attempt by the appellants to work on the first respondents' site, and hence no need for a reaction to such an attempt, it is not necessary to consider what would have been the position if there had been. Beyond saying that the ban actually imposed could only be the subject of a section 54/68 complaint within three months of its imposition (subject to the just and equitable provision which does not arise in this appeal), it is not necessary to consider other possible situations.
41. I would dismiss this appeal.

Lord Justice Hughes :

42. I agree.

Lord Justice Rimer :

43. I also agree.