United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS G WHITE (of Counsel) The Solicitor South Wales Police Police Headquarters Cowbridge Road Bridgend CF31 3SU
For the Respondents	MS S ROBERTSON (of Counsel) Messrs Russell Jones & Walker Solicitors Swinton House 324 Grays Inn Road London WC1X 8DH


 


JUDGE PETER CLARK: The three remaining Respondents to this appeal, Mr Clarkson having now withdrawn his application to the Industrial Tribunal, were each serving Police Inspectors in the South Wales Police. The Appellant is their Chief Constable.

On 3 January 1996 the Appellant invited applications from Chief Inspectors, Inspectors and civilian employees of senior officer grade and above, for a limited number of places on the modular police management programme at Bramshill Police Staff College. The courses headed "Managing Operations" lasted for ten days each, and were to be run from 15 April 1996 at intervals, the last one taking place between 10 and 21 March 1997.

Each Respondent applied to go on such a course. Each was rejected by letter dated 26 March 1996. That standard form letter explained that competition for places was very intense and referred also to a positive action initiative, under which five places were reserved; two for officers from ethnic minorities; two for female officers and one for civilian employees.

On 6 January 1997 the three remaining Respondents presented complaints of unlawful sex and race discrimination to the Industrial Tribunal. The nature of their complaints was that places on the course which would assist promotion prospects ought to have been allocated on the basis of ability only. The positive action initiative excluded each of them from the five places reserved for the above-stated categories of applicants.

The Appellant took the point that the complaints were out of time. That preliminary issue came before a Chairman, Dr Rachel Davies sitting alone at the Cardiff Industrial Tribunal on 25 February 1997. She held that the complaints were presented within time; or if not, she would extend time under the discretion provided for in Section 76(5) of the Sex Discrimination Act 1975 and the equivalent provision under Section 68(5) of the Race Relations Act 1976.

Her reasoning expressed in full reasons dated 8 May 1997, was as follows; she rejected the Appellant's submission that the act here complained of was the Respondents' non-selection for the programme on 26 March 1996, holding that since the Respondents could have been allocated to any of the courses running up until 21 March 1997, the act complained of was a continuous course of conduct ongoing from 26 March 1996 until 21 March 1997; the complaints were presented in time. Alternatively she would, if she was wrong about that extend time "on the ground that the ongoing nature of the training from which the applicants (below) were allegedly excluded, renders it just and equitable that time should be extended.

The Law

Section 76 of the 1975 Act provides:

(1) An industrial tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

(5) 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.

(6) For the purposes of this section

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

Equivalent provisions are to be found in Section 68 of the Race Relations Act 1976.

The authorities on this topic draw a distinction between one-off acts with continuing consequences and acts extending over a period of time. In the former category see, for example, Amies v Inner London Education Authority [1977] ICR 308 Sougrin v Haringey Health Authority [1992] ICR 650 and Cast v Croydon College [1997] IRLR 14. In the latter category: see Barclays Bank Plc v Kapur [1991] 2 AC 355 and Owusu v London Fire & Civil Defence Authority [1995] IRLR 574.

An hybrid position was achieved by the Court of Appeal in Rovenska v General Medical Council [1997] IRLR 367, a decision not put before the Chairman, it not then having been fully reported, where it was held, differing from the reasoning, though not in the result, of the Employment Appeal Tribunal in that case, that where a Respondent to an application complaining of discrimination adopted a policy or regime which was allegedly discriminatory, each time it applied it to the complainant, that constituted a fresh act of discrimination which re-set the primary three-month limitation period running.

In this appeal Miss White submits that on the facts as found by the Chairman, the act complained of was the refusal of the Appellant to accept the Respondents' applications for places on the programme. That was a single act which took place on 26 March 1996. There was no finding as to a continuing discriminatory policy; even if there was, following Rovenska, there was no further application by the Respondents for a place before they presented their complaints to the Industrial Tribunal in January 1997.

As to the exercise of discretion under Section 76 (5), it is well-established that this Appeal Tribunal will not readily interfere with the Industrial Tribunal's exercise of discretion: see for example Hutchison & Westward Television Ltd [1977] ICR 279; however, here, it is submitted, the sole factor taken into account by the Chairman was an irrelevant factor, namely, the ongoing nature of the training. That is simply the consequence of the one-off act of discrimination; it cannot of itself, found a basis for extending time under Section 76(5).

For the Respondents, Ms Robertson accepts that there is no express finding by the Chairman that the Appellant operated an allegedly discriminatory policy, although she submits that that is implicit in the Chairman's reference to the "positive action initiative". She contends that there is here an act extending over a period, as identified in the example given by Bristow J in Amies at page 311 D, an analysis approved by the House of Lords in Kapur. Alternatively, she contends that the Chairman was entitled to exercise her discretion as she did. There is no need for fuller reasons: see for example the approach of Mummery J in Owusu, at paragraph 27. The factor which the Chairman took into account was, so Ms Robertson submits, a permissible one.

In our judgment the submissions of Miss White are to be preferred. We are satisfied that on the findings of fact the only conclusion was that the Respondents' complaints related to the single act of refusal on 26 March 1996. The complaints were made out of time. Further, the sole ground upon which the Chairman exercised her discretion in favour of allowing the matter to proceed was wholly irrelevant. The fact that courses, for which places, including reserve places, were allocated on or before 26 March 1996 continued as part of a rolling programme over the following year cannot, in our judgment, form any part of the relevant circumstances of the case for the purposes of Section 76(5). That being the only ground upon which discretion was exercised in favour of the Respondents, these applications being well out of time, we shall allow this appeal, reverse the decision of the Chairman and consequently dismiss these complaints.