United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 334_93_0103

Appeal No. EAT/334/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 March 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS M L BOYLE

MR R H PHIPPS

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MR K OWUSU          APPELLANT

LONDON FIRE & CIVIL DEFENCE AUTHORITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR T KIBLING

(of Counsel)

Tamara Lewis

Central London Law Centre

47 Charing Cross Road

London WC2H 0AN

For the Respondents MR P STEWART

(of Counsel)

Mr C. Carlton

L.F.C.D.A.

20 Albert Embankment

London SE1 7SD


 


MR JUSTICE MUMMERY (PRESIDENT): This is a case of alleged Racial Discrimination brought by Mr Owusu against the London Fire & Civil Defence Authority. Mr Kibling now appears for Mr Owusu and Mr Stewart represents the London Fire & Civil Defence Authority. We are indebted to them both for full and careful written submissions and for their oral submissions. The point raised in the case concerns the time limits laid down in the Race Relations Act 1976 within in which proceedings are to be brought. Its provided in section 68(1) that an Industrial Tribunal shall not consider a complaint under Section 54, unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

Sub-section 7 then provides:

"For the purposes of this section -

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

(c) a deliberate omission shall be treated as done when the person in question decided upon it"

Sub-section 6 confers a discretion on a Tribunal to extend time in these terms: "

"a Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time, if in all the circumstances of the case it considers that it is just and equitable to do so."

The main issue on this appeal if whether this is a case in which the act complained of was done before the end of the period of three months or whether it is what is sometimes called a "continuing act", which is treated as done at the end of the period over which the alleged act extends. There is a secondary question as to whether the Tribunal erred in law in refusing to extend time.

In order to understand the points on the Appeal it is necessary to look at the history of these proceedings and the allegations made in them. The applicant, Mr Owusu, was employed as a case worker by the respondents. He presented a application to the Industrial Tribunal on 12 February 1991. He specified the type of complaint as "Race Relations Act 1976". In the box where the applicant is asked to given the date when action complained of took place, he wrote "presently" in box 10 for full details of complaint he said this:

"contrary to the Race Relations Act 1976 and my employers Equal Opportunities Statement, no regard has been given to my career development. I am being directly and indirectly discriminated against, though performing the same tasks, yet I am less paid. I have been marginalised as an employee because of my colour I have vast working experience, and in spite of my hard working efforts, there appears to be no prospect of my promotion."

It appears that that document was prepared without legal advice. Not surprisingly an application was made by the respondents for further and better particulars which were ordered. The response to those particulars given on 23 April 1991 reads as follows:

"1. I strongly feel that my failure to advance beyond the grade of MG12 after more than six years in the LFCDA is due to racial discrimination and that the lack of career development in the Authority is against both the letter and the spirit of the Race Relations Act 1976.

My work experience and qualifications are comparable to those of the successful candidates of all the jobs that I have applied for.

2. I am the only Fire Safety caseworker in North West Area Fire Safety Division at MG12 grade. All my colleagues performing similar work are graded MG11 or above.

3. The LFCDA has an Equal Opportunities Policy, but it has never been applied in my case. I have always been a dedicated employee and yet I have been repeatedly passed over for promotion, which I believe, it is because of my race and colour."

On the 4th June 1992 Mr Owusu presented a second originating application in which his complaint was in relation to Equal Pay. He gave the date of the action that he was complaining about as "continuing" and in the grounds of application he specified in paragraph 9, those same acts given as grounds on which he relies in his proceedings for racial discrimination. They read as follows:

"9. I have suffered from continuing unlawful discrimination contrary to the Race Relations Act 1976. In particular, the following are acts of discrimination -

[1] Failure to regrade me from MG12 to MG11 at any stage following my move to casework and/or failure to acknowledge and accept that at any stage since my transfer to casework I have been carrying out the same duties as the MG11 caseworkers in my department."

He refers earlier in the grounds to the move to casework where he says in paragraph 1:

"1. I have worked for the respondents in their fire safety division at grade MG12 since 1986. When I started I was given no job description. In July 1987 I was transferred to my current position as fire safety caseworker in the North West Area safety division, based at Marion House. I am of Ghanaian national origin."

In paragraph [2] he complains of failure to promote him in respects of any of the following jobs which he was short-listed. He then gives four instances dated August 1988, 1987, November 1986 and December 1987. Thirdly, he complains of failure to short list or appoint him to any of the following caseworker jobs and gives three instances with dates; January 1990, March 1990 and August 1990. And the fourth and final heading of acts of discrimination reads:

"... Failure to give me the opportunity to act up to MG11 when such opportunities arose and/or Failure to give me the opportunity to act up alone as opposed to in tandem with another (African/Caribbean colleague) and/or Failure to pay me or otherwise to recognise when I acted up de facto."

It is necessary to refer back to paragraph 8 of the grounds where he says:

"... I have also been deprived of proper opportunities to act up e.g.[and then he gives three instances]

"[1] When Caroline Priddy was on maternity leave in about 1987, I effectively covered her work without any recognition or pay. I was not told that the acting up position had been internally advertised and as a result, a white worker of less experience, was appointed. Further, he did not in fact carry out the acting up duties in that department."

"[2] Anne Vallis acted up from MG12 to MG11 in or about 1988/9 whereas neither myself nor my African Caribbean colleague Armond Amo were consulted or offered the opportunity to act up on such occasion."

"[3] When an acting up opportunity arose due to the absence of Mrs Da Silva on maternity leave, such opportunity was offered jointly to Armond Amo and myself, whereas white colleagues would act up alone."

Those were the complaints before the Tribunal held at London North on 8th March 1993. For Full Reasons notified to the parties on 19th March 1993 the Tribunal unanimously decided that Mr Owusu's claim, based on alleged racial discrimination, was dismissed on the grounds that the Tribunal had no jurisdiction to hear it on the merits.

The Tribunal did hear, over a period of five days in March 1993, his equal pay claim and unanimously held that that failed and dismissed it.

This Appeal is against the decision that the Tribunal had no jurisdiction to hear the racial discrimination claim on its merits. The Notice of Appeal was served on 23 April 1993. The matter first came before the Employment Appeal Tribunal as a preliminary hearing on 10 June 1994 when it was allowed to proceed the full hearing. Directions were given for the preparation of and exchange of Skeleton Arguments.

The Tribunal's Full Reasons explain the circumstances in which they called Counsel for both parties to inform them about which of the numerous documents they wanted them to read. After some conferring Mr Stewart who appeared for the Respondents, returned and made an application under Section 68 of the 1976 Act in relation to Race Discrimination claim. That application related to the complaints being out of time.

The Tribunal referred to the history of the proceedings. And went on to say, after summarising Mr Stewart's submission, that the question for the tribunal was whether or not the failure to re-grade or recognise or acknowledge the work the Applicant was doing and payment of the appropriate pay for it was an act of continuing discrimination on racial grounds. Mr Stewart's submission was that the further and better particulars given did not carry the matter any further. Reference was made to authorities, Sougrin - v - Haringey Health Authority 1992 ICR 650, Barclays Bank Plc - v - Kapur 1991 ICR 208 and Calder - v - James Findlay Corporation Ltd. Mr Stewart's submission was that there was no continuing act within the meaning of those decisions. He invited the Tribunal to dismiss the originating application complaining of racial discrimination as being out of time, as the Tribunal had no jurisdiction to hear it on the merits.

Counsel for Mr Owusu, Mrs Clinton, made her submissions. They are summarised in paragraph 6 of the decision. She referred to the claims and the details of the incidents given in the particulars. She submitted that Mr Owusu was denied the opportunity to be up-graded and he was doing the same work as another grade MG11. She submitted that there was a continuing failure from 1987, a continuing act up to and including the date of presentation of the claim, alternatively there was a continuation because of the frequency of Mr Owusu's failed applications for vacancies. She said that they were quite frequent and occurred between October 1989 and September 1990. Alternatively, the act of discrimination was not one off, although each vacancy was applied for and the applicant was rejected. She says that the Tribunal should look at the rejections as a sequence of similar events. She submitted that the Tribunal should hear the evidence on all the complaints in order to determine what was and was not out of time, and to decide at the end of the hearing how they should rule on Section 68(6) 1976 Act.

The Tribunal did not accept Mrs Clinton's submissions. They considered the authorities and the arguments and they came to the conclusion that the Tribunal had no jurisdiction. They took into account the fact that, when the proceedings started, Mr Owusu prepared the originating application with little or no legal assistance. They noted that by the time he had reached the Interlocutory Applications and certainly by 2nd June 1992 it was more likely that he was receiving professional advice. Their view was that he had received legal advice from about June 1992, if not earlier.

They said in paragraph 9 of the decision:

"9 We have perused the documents, considered the cases to which we have been referred, and considered the arguments put forward. We note that the grounds of application, insofar as they relate to the race discrimination claim are by way of a side-swipe, as it were, because they are expressed to be in support of an equal pay claim. It is a side entrance or getting in by the back door, by way of further and better particulars. However, even those particulars, in our view, do not specify dates which are within the three period going back from the Originating Application on the race discrimination claim presented some 14 or 15 months earlier. All in all, we favour the argument put forward by Mr Stewart and, despite the valiant efforts of Mrs Clinton, we take the view that we have no jurisdiction to hear the race relations claim on its merits as we do not regard, on the facts, any acts of discrimination, if there were any acts of discrimination, continuing over a period that extends to within three months of the presentation of the Originating Application. Against the background I have outlined, we take the view that it would not be just and equitable for us to hear the claim on its merits notwithstanding its presentation out of time. In those circumstances as we have no jurisdiction to hear the claim on its merits, it fails and is dismissed accordingly."

The Primary Submission made by Mr Kibling is that the Tribunal mis-directed themselves in law in failing to regard as continuing acts the failure to re-grade from MG12 to MG11 and failure to give an opportunity to act-up to MG11 when such opportunities arose. He complains that the Tribunal erred in law in treating those as one-off acts and not as continuing acts.

For the purpose of this submission he dropped complaints relating to failure to promote and short-list. They surface in relation to the second submission discussed later. Having referred to the relevant statutory provision and the case of Sougrin, Barclays Bank - v - Kapur, Mr Kibling submitted that there was a continuing act of discrimination alleged to extend over a period falling within the three months proceeding the presentation of the originating application.

He submitted that the various acts alleged, which for this purpose have to be assumed to have taken place, were what he initially described as a "seamless whole" having regard to the frequent and repeated applications made by Mr Owusu for up-grading and to the manner in which those applications were dealt with. He developed this by saying there must be some rule or practice applied by the respondents which, by its nature, amounted to a continuing act extending over a period of time.

Mr Stewart repeated in essence the submissions he made on this point to the Industrial Tribunal. In the course of his arguments he made many propositions on which there is no dispute. It comes in the end to a short issue between the parties as to the application of the principles relating to one-off acts and continuing acts to the facts of this case. What he says is that the complaint of failure to re-grade and failure to given an opportunity to act-up are no different than the specific instances stated in relation to the complaints of failure to promote, short-list and appoint. They are specific one-off instances, not continuing acts. They are out of time. The Tribunal's decision was correct.

We agree with him to this extent: that if Mr Kibling had unwisely persisted in his complaints on this part of the case about failure to promote and short-list, those are undoubtedly specific instances, all of which occurred outside the three month period.

We do, however, agree Mr Kibling that in this case the Tribunal erred in law in failing to treat the acts complained of on re-grading and failure to give the opportunity to act-up as continuing acts. We emphasise that all these matters are matters of allegation only. Nothing has been proved. But in our view the allegations amount to a prima facie case that there was a continuing act. The continuing act was in the form of maintaining a practice which, when followed or applied, excluded Mr Owusu from re-grading or opportunities at act-up.

The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to up-grade may be a specific act with continuing consequences. The continuing consequences do not make it continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions, discriminatory of Mr Owusu.

It would be a matter of evidence for the Tribunal as to whether such a practice, as is alleged in Mr Kibling's argument, in fact exists. It may be that, when explanations are given by the respondents, it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice.

We emphasise that, even if it was established that there were some practice built up of denying Mr Owusu up-grading or the opportunity to act-up, it would still have to be proved that it was a discriminatory practice. It may be that the respondents can satisfy the Tribunal, when they hear the case on the merits, that there are alternative explanations for the treatment of which Mr Owusu makes complaint. But those are all matters for investigation on the merits. We are satisfied that this tribunal erred in law in failing to appreciate that a succession of specific instances could indicate the existance of a practice, which in turn, could constitute an act extending over a period which is a continuing act.

On the first point we decide that the Appeal is allowed by reason of an error of law. The complaints in relation to failure to re-grade in 9.1 of the Grounds of Application and failure to give opportunity to act-up in 9.4 in the Ground of Application are claims which the Tribunal has jurisdiction to investigate. They are not barred by Section 68(1).

We can deal with the secondary argument more briefly. The complaint of Mr Kibling on this point is that the Tribunal erred in law in refusing to exercise the discretion to extend time, under Section 68(6). This argument has no practical importance in relation to complaints in the grounds 9.1 and 9.4, as we have held those to be within the description of acts extending over a period and therefore not time barred. It is of practical importance in relation to 9.2 and 9.3, failure to promote and failure to short-list or appoint. Mr Kibling's complaint on this aspect of the case is that the Tribunal, in exercising the discretion under Section 68(6) were under an obligation to consider all the material matters. There was an application to extend time There was a mandatory obligation on the Tribunal, in making a decision on that application, to provide reasons for the refusal to grant an extension. He reminded us to the well-known passage in the Court of Appeals judgement in Meek - v - City of Birmingham District Council 1987 IRLR 250 that parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts and the reasoning to enable the Employment Appeal Tribunal to see whether any question of law arises.

He also drew our attention to the decision of the Employment Appeal Tribunal in Guest - v - Alpine Soft Drinks 1982 ICR 110 at page 113 for the proposition that a decision of a Tribunal without reasons is not a valid decision. He said that the decision on the application under Section 68(6) was not valid decision because reasons were not given, and therefore this part of the case, as so far as it affects the complaints 9.2 and 9.3, should be remitted to the Industrial Tribunal, or another Industrial Tribunal, for reconsideration and for full explanation of the reasons for which ever way they decide to exercise their discretion.

He says, in addition, that the decision, which is not supported by the reasons it should have been, is perverse. We are unable to accept these submissions. First, the Tribunal did give reasons. We agree with Mr Kibling that it would have been better to give more reasons than they did to explain in a few more sentences why they thought it was not just and equitable to extend to the time. But they did give reasons for the decision not to extend the time. They said it would not be just and equitable for them to hear it on the merits. Those are reasons. They referred to the background outlined earlier in the decision. There is to be taken with the reasons that it was not just and equitable to hear the claim, all the background facts previously stated. It appears from those, in relation to the complaints of failure to promote and failure to short-list and appoint, that the time had long passed for making the complaint within the period of three months.

We find it impossible to say on the material put forward to the Industrial Tribunal that it was a perverse decision to refuse to extend the period. Just looking at the dates alone there was some evidence to justify a Tribunal in concluding that it was not just and equitable to hear the merits in relation to those complaints on failure to promote and failure to short-list.

On that aspect of the case we agree with Mr Stewart's submission that, having formed the view that those acts, a failure to promote and short-list, were outside the three months period,. they were entitled to exercise their discretion in the way that they did. Mr Kibling's appeal on that must fail, unless he can show that there was a demonstrably wrong approach. For the reasons I have mentioned, he has failed to establish that.

We dismiss the Appeal against the refusal to extend the time.

The overall result of the case is that the Appeal is allowed in relation to the continuing act of point which affects Paragraph 9.1 and 9.4 of the grounds of application. The Appeal is dismissed on the extension of time point which affects Paragraph 9.2 and 9.3 of the grounds of application.