United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 161_95_0905

Appeal No. EAT/161/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th May 1996

Before

HIS HONOUR JUDGE B HARGROVE Q.C.

MISS A MACKIE OBE

MR G H WRIGHT MBE

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MRS J CAST          APPELLANT

CROYDON COLLEGE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MISS H WILLIAMS

(of Counsel)

Equal Opportunities

Commission

Overseas House

Quay Street

Manchester

M3 3HN

For the Respondents MR B CARR

(of Counsel)

Stonehams

Solicitors

Stoneham House

17 Scarbrook Road

Croydon

Surrey

CR0 1SQ


 


JUDGE HARGROVE Q.C.: The appellant was employed by the respondents as an information centre manager from July 1990 until 6th July 1993 when she resigned.

During late 1991 or early 1992 she became pregnant and took maternity leave starting on 3rd July 1992.

She wanted the terms of her engagement changed so that she could either job-share or work on part-time basis. This was considered on 28th March 1992 and was refused. Her maternity leave ended on 1st March 1993, the child having been delivered on 12th August 1992. Between 1st March 1993 to 31st March 1993 the appellant took her outstanding leave during that month on a sporadic basis so that in effect during that time she managed a part-time schedule. On 16th March and 10th May 1993 she made further applications for the changes she sought in the terms of her engagement. She was again refused. She requested the reasons in writing and these were supplied on 14th May 1993.

The appellant took sick leave and on 7th June 1993 she resigned. The resignation being effective on 6th July 1993. On 13th August 1993 the appellant served her application alleging unfair constructive dismissal and dismissal by sexual discrimination. Originally the appellant has said, in Box 9 of the IT1, that the act of which she complained took place on 26th March 1992. On the preliminary hearing before the Industrial Tribunal there was a late application to change that date to May 1993.

The Industrial Tribunal found that the act of discrimination if there was one occurred on 26th March 1992 and what occurred after that was a repetition of the request and refusal. The Industrial Tribunal considered whether the act was a continuing act of discrimination. After considering Sougrin v Harringey Health Authority [1992] ICR 650 and Calder v James Finley [1989] ICR 151 they found:

"17 In the present case this was a single act by the Respondents in deciding that they would not agree to the Applicant job sharing or working part-time. It was not a rule which they imposed overall - the Applicant could point to no such rule; and so we find that there was no continuing act in this case.

18 The third issue before us is whether it is just and equitable to extend the time in which this application can be made. This application should have been made by 25 June 1992 but in fact it was made on 13 August 1993 - and so it was thirteen and a half months out of time. We have to consider the interests of both parties and balance them. Bearing in mind the considerable delay which occurred in this case we do not think it right to extend the time limit."

The main thrust of the appeal on the jurisdiction issue is that the Industrial Tribunal was in error because the decision of refusal on 26th March 1992 did not provide a full cause of action. Attention was drawn to Section 63 of the Act where the words `has committed an act of discrimination' (italics applied) is said to indicate that the act of discrimination must be completed. Reliance is placed on Swithland Motors Plc v Clarke [1994] ICR 231 at 236:

" We reject Mr Goudling's submissions. Section 76 of the Act of the 1975 is concerned with limitation, not with the creating or definition of a cause of action. The cause of action is created by section 6. In our judgment the unlawful act of discriminating against a man or woman by omitting to offer him or her employment could not be committed until Swithland was in a position to offer such employment, i.e. on the completion of the take-over on 5 March 1991. The suggestion that there was cause of action before that date, created simply by operation of section 76(6) appears to us to be fanciful. Whoever was responsible for deciding on the deliberate omission might, before 5 March 1991, have had one or more changes of mind. This, to us, underlines the absurdity of supposing that a cause of action could arise before that date."

That case differs radically from the position in which Croydon College was situated. It was quite within the power of the College when the first demand was made to accede to it or, as occurred, refuse it.

INDIRECT DISCRIMINATION

It is further said that if one considers Section 1(1)(b)(iii) in cases of indirect discrimination the discrimination only applies when the victim cannot comply with the requirement. In other words she was not placed at an disadvantage until such time as she could not carry on working full-time. This would mean that time would run when she completed full-time working either on 28th May 1993 or when she resigned on 7th June 1993. In Clarke v Eley (IMI) Kynoch [1983] ICR 165 at 171. The court was considering the requirements under Section 1(1)(b)(ii) and (iii) in the following terms:

" The question is whether the applicant's inability to comply with a requirement or condition has to be judged as at the date of selection for redundancy or dismissal or as at some earlier date. The point has a dual importance in this case. First, if it is legitimate to have regard to the ability of part-time workers to become to full-time workers before 1980, then for the purposes of paragraph (i) the proportion of women who "can comply" at that earlier date will be different from the proportion who "can comply" in 1981 when transfer from part-time to full-time work had become impossible. Secondly, the industrial tribunal held that Mrs Clarke failed to satisfy the requirement of paragraph (iii) because at some earlier date she could have transferred to full-time work and if she had done so she would not have suffered the detriment.

On this issue we are unable to agree with the industrial tribunal. Counsel our agreed that the relevant point in time at which the ability to comply has to be assessed must be the same under both paragraph (i) and paragraph (iii). We will consider the case under paragraph (iii) first. The industrial tribunal, although accepting that both ladies had suffered a detriment, said that they had to show that they could not comply as individuals with the requirements to be full-time workers. No doubt this was a paraphrase of the statutory words, but we think that the paraphrase may have led the industrial tribunal astray. Paragraph (iii) does not in terms impose on the complainant the burden of showing that she cannot comply with the requirement: she has to show that the requirement "is to her detriment because she cannot comply with it." The paragraph imposes the burden of showing detriment to the individual applicant by reason of inability to comply. If one asked the question "At what date is the detriment to be demonstrated?" there can only be one answer: namely, at the date of the discriminatory conduct has operated so as to create the alleged detriment. In this case the detriment relied upon is the dismissal for redundancy. Therefore the relevant question under paragraph (iii) is "did the applicant suffer the detriment of dismissal for redundancy because she would not comply with the requirement to be a full-time worker?" So analysed, it seem to us that under paragraph (iii) the only material question is whether at the date of the detriment she can or cannot comply with the requirement."

What is sought to be drawn from that decision is that it was only when the appellant was unable to comply with full-time working that she suffered a detriment, that however is a faulty analysis. Until the date of refusal she was in a position whereby she had a full-time contract and she hoped, or believed, that she would be able to negotiate a change in that contract to suit her convenience. When she received the refusal her position changed. She no longer had the advantage which she believed she possessed, Namely, to remodel her engagement. Moreover if one turns to Section 76 the words of the statute are clear. Section 76(1) specifies "when the act complained of was done". If the question is asked "what was that act?" the answer must be "the refusal in March 1992". The respondent points out that if the argument on indirect discrimination requires that there must be a completed cause of action, then under Section 1(1)(b) it is provided:

"(b) he applies to her a requirement or condition which he applies or would apply equally to a man-

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to her detriment because she cannot comply with it."

It follows therefore that proportionality, justification and detriment would on the appellant's argument have to be complied with before a `cause of action' arose. That equates with total liability, and it would be a bizarre conclusion if before dealing with a point on jurisdiction it was necessary to hear the entire case in any event before the issue could be resolved. That was clearly not what the legislature intended and Hutchison v Westward Television [1977] ICR 278 at 281 Phillips J. at 281 held:

" The first thing that it is necessary to say about that is that there was an argument presented before the industrial tribunal founded on the words "in all the circumstances of the case." Mr Pillar, who then appeared for the applicant, argued that the words "the case" meant the whole proceedings, and that on that footing the industrial tribunal would be required to hear the entire case, that is to say, the complaint, before it was able to determine whether or not it had a jurisdiction to hear it. As the industrial tribunal pointed out, that would be an absurdity because it would mean that in every application, before deciding whether to extend the time limit, it would have to hear the case, which would be an odd situation indeed. The industrial tribunal rejected that view and in our judgment rightly so;"

We consider the comments of Phillips J. are equally applicable on this appeal.

Further assistance is to be derived from Section 76(6)(c) which provides:

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

The appellant's interpretation would produce a further bizarre result in that if the refusal could be regarded as an omission, then the date of the refusal starts time to run. But if it is an act of commission, then time does not begin to run until all the elements have been completed.

DIRECT DISCRIMINATION

Alternatively, the appellant says that this was act of direct discrimination on the basis that she was discriminated against because she could not work part-time, and that that forced her out when she left as a result of constructive dismissal in July 1993. Here, it is said, that the act complained of would be of the dismissal. Reliance is placed on Lupetti v Wrens Old House Ltd [1984] ICR 348. In that case the applicant was given notice on 3rd February 1983 terminating his employment on 28th February 1983. The question arose on appeal whether the date of the notice or the date when he left employment was the relevant date. At page 350 the Employment Appeal Tribunal held:

" The act complained of here is the dismissal of the applicant and the short point is: for the purposes of the Race Relations Act 1976, did that dismissal occur on 3 February, when notice was given, or 28 February, when the employment was terminated? We have been referred, in this context, to Dedman v. British Building & Engineering Appliances Ltd. [1974] I.C.R. 53, which dealt with the effective date of termination of a contract, and we find that decision and, indeed, definitions which occur in the Employment Protection (Consolidation) Act 1978 of no help to us in this case, because Dedman's case is dealing with a different section, and the definitions in the Act of 1978 cover matters on which the Race Relations Act 1976 is silent. It appears to us that we have to approach the construction of the Act of 1976 by considering what was the mischief that Parliament was intending to cover by providing that it was unlawful to discriminate against an employee by dismissing him.

Putting it quite shortly, it seems to us that the mischief which Parliament was intending to cover by those provisions was that of a person finding himself out of a job because of racial or other discriminatory grounds. If that be right (and it appears to us that it is), then the act complained of is the termination of employment and accordingly the effective date for considering when time starts to run is the date when the man finds himself out of job rather than the date when he is given notice."

It is said that the principle is the same, namely that it is when she is ejected from her job on the basis of constructive dismissal that times begins to run, and that the error of the industrial tribunal was in failing to ask when the cause of action was complete. The difficulty with this argument is that direct discrimination requires that she was able to allege that she was treated less favourably than a man is or would be treated. There seems no basis for that contention at all. Further, if there is an act of discrimination and without resigning an employee bring proceedings at the close of six months he will be out of time. But if, on the appellant's argument, he resigns some two years later his cause of action revives, and that all that is necessary is for the employee to assert that there is a connection between the resignation and the act of discrimination. Again, the proper analysis is that there was a detriment at the date of refusal and the later resignation was a result of that detriment. The resignation does not create a fresh cause of action.

CONTINUING ACT OF DISCRIMINATION

The appellant also contends that even if time could run from 26th March 1992, there was a continuing act of discrimination. Reliance is placed upon Section 76(6)(b):

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

A comparison is made with Owusu v London Fire Brigade & Civil Defence Authority [1995] IRLR 574, where this court held:

" 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 upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the 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 to Mr Owusu."

It is contended that had the tribunal applied that approach, they would not have fallen into the error in paragraph 17 of looking for an express rule, believing that such rule had to be imposed overall. It is said that here there is a practice that the post was to be a full-time one. In our view the tribunal clearly asked itself the correct question "was it a continuing act?". Findings occur in paragraphs 5, 8, 11 and 14. The mere repetition of a request cannot convert a single managerial decision into a policy, practice or rule. In the Owusu case, it does not hold that a series of refusals must amount to a practice. In our view, the tribunal was forced to the view that this was a single act, and being a finding of fact after considering correctly the question of law, it cannot be impeached.

"JUST AND EQUITABLE"

The tribunal is further attacked because it is claimed that it erred in law in finding that it was not just and equitable to extend time in respect of the appellant's claim. The first basis being that it had reached the view that the application was 13.5 months out of time. It is said that until the appellant returned to work the cause of action under the Sex Discrimination Act could not have been complete. We have already dealt with that aspect of the case above. But it was also urged upon us that the tribunal should not have formed a view whether it was just and equitable, because they had not heard the respective merits to the parties claims. This would have caused, it is said, no difficulty as there was a live constructive dismissal claim on the same facts. This overlooks a number of matters, not least the fact that the preliminary issue was taken by consent. Secondly, there is a considerable difference in the awards which may be given under the two Acts. Different questions of law apply to constructive dismissal and unfair dismissal cases, and in discrimination matters. Moreover, the tribunal had carried out the correct balancing consideration of the parties interest. The mere fact that the tribunal does not set out at length all the matters that they took into account, is not to be regarded as evidence the tribunal ignored them.

In our view no other matters are raised by this appeal which require detailed consideration. Suffice it to say that we can find no error of law or perversity in the decision of the tribunal, and this appeal is accordingly dismissed.