At the Tribunal | |
Judgment delivered on 29 July 2003 |
Before
HIS HONOUR JUDGE BIRTLES
MRS M McARTHUR
THE HONOURABLE DR WILLIAM MORRIS OJ
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR K HENRY THE APPELLANT IN PERSON |
For the Respondent | MR A THOMPSON (of Counsel) Instructed By: London Borough of Newham Legal Services Newham Town Hall East Ham London E6 2RP |
HIS HONOUR JUDGE BIRTLES:
Introduction
The material facts
Employment Tribunal Decision
The grounds of appeal
Ground 1
"25 The Originating Application is somewhat loosely worded, but taken with the Applicant's evidence and the statements he made to the Tribunal his complaints of discrimination on racial grounds in relation to his employment by the Respondent can be summarised as follows:
(Not relevant)
Furthermore there was institutional racism endemic within the Respondent which was the prime cause of the discriminatory treatment of the Applicant outlined above, which had generally infected the management and was responsible for the way in which it dealt with the Applicant and responded to his grievances."
The Tribunal's conclusion is set out in paragraph 30 of its decision as follows:
"30. There should first be considered the charge of 'institutional racism' which according to Mr Henry prevailed throughout the management of the Respondent. We find this allegation wholly unsupported by any evidence. What we have heard about are a series of incidents involving Mr Henry and various officers of the Respondent concerned with the management of Library Services and Leisure Services or the work of Human Resources within these departments. Whether these incidents involved discrimination against Mr Henry on racial grounds is a matter which will have to be considered individually in relation to each incident, but there are no grounds for concluding or even suspecting, that there was a culture or policy of racial discrimination within the Respondent's organisation, or within the Library or Leisure Services departments."
Ground 2
"51 In my judgment, the approach of both the employment tribunal and the Appeal Tribunal to the language of the authorities on 'continuing acts' was too literal. They concentrated on whether the concepts of a policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken, fitted the facts of the case: see Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 at paragraphs 21-23; Rovenska v General Medical Council [1997] IRLR 367 at p.371; Cast v Croydon College [1998] IRLR 318 at p.322. (cf the approach of the Appeal Tribunal in Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69 at p.72 where there was an 'accumulation of events over a period of time' and a finding of a 'climate of racial abuse' of which the employers were aware, but had done nothing. That was treated as 'continuing conduct' and a 'continuing failure' on the part of the employers to prevent racial abuse and discrimination, and as amounting to 'other detriment' within s.4(2)(c) of the 1976 Act).
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 sidetracked 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."
Ground 3
"22 In July 2001 Mr Henry had to go at short notice to Jamaica to arrange and attend the funeral of an uncle. He complains that he asked Human Resources for and was not granted funeral or compassionate leave. Mr Rice in his evidence explained that the procedure normally followed when an employee suddenly had to take leave for a family bereavement was for the leave to be regarded as part of the annual leave until an application for special leave was made and considered after the employee's return. This was because there was usually not time to deal with the application before departure. This is what happened in this instance. Mr Henry made an application on 2 September 2001 for special leave from 2 July to 17 July (A 131) and he was granted 5 days funeral leave, one day more than normal (A 132)."
Ground 4
Ground 5
"11 It seems to us that Mr Henry has an arguable case that the Employment Tribunal did not address the question as to whether any inference fell to be drawn from the fact that he was monitored without his knowledge in the context of race discrimination.": EAT bundle page 76 paragraph 11.
Conclusion