United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR O ILORI (Representative)
For the Respondent	MR F SUTCLIFFE (Solicitor) Messrs Ford & Warren Solicitors Westgate Point Westgate Leeds West Yorkshire LS1 2AX


 


SUMMARY

Race Discrimination – Continuing Act

The correct approach to considering whether complaints about individual matters, prima facie out of time, can be coincided by the ET because they form part of a continuing act.


 


THE HONOURABLE MR JUSTICE WILKIE

1. This is an appeal by Mrs Ilori against the decision of the Employment Tribunal which sat at Leeds to hear her complaints of race discrimination against Leeds City Council and two individual employees of Leeds City Council. The hearing took place on four successive days in December 2006 and five successive days in January 2007 at the end of which judgment was reserved.
2. The decision of the Tribunal was that various complaints made by her against each of the Respondents was dismissed. Throughout the Appellant has acted through representation by her husband Mr Ilori who though apparently not a lawyer has impressed us greatly both with the quality of his written submissions and the brevity effectiveness of his oral submissions. She sought to appeal against those decisions dismissing her claims on a number of grounds. The Notice of Appeal containing those grounds was submitted to the EAT's sifting procedure. Following upon that, and on the papers, a decision was made provisionally that these appeals should not proceed as they disclosed no real prospect of success. Pursuant to the sift procedure, a provisionally unsuccessful Appellant is entitled under Rule 3(10) to an oral hearing at which to persuade a judge sitting alone that the appeal or any part of it is worthy of ventilation at a full hearing.
3. Mrs Ilori acting by her husband took advantage of that provision and on 5 October 2007 HHJ Peter Clark heard that application. He decided that, save for one aspect of the decision, the appeal had no prospect of success and he dismissed the appeal on those grounds.
4. The sole basis upon which the matter came before us for a full hearing was in respect of one element of the Tribunal's decision, that concerned which incidents the Tribunal should have considered had been the subject of complaints made in time. To put that into context the Appellant had commenced employment with the First Respondent in 1991. By the time of the hearing before the EAT she had been on sick leave for a considerable period of time, her last day at work having been in June 2006. On 20 June 2006 she had presented her complaint to the Tribunal.
5. Throughout her employment the Appellant was employed on salary scale S4. The complaints which she made to the Tribunal were in respect of a period of time which started in 2002 and continued up to the date when she went on sick leave. The Employment Tribunal throughout the nine days of the hearing heard evidence in respect of all of the matters which formed the subject of her complaint. They heard evidence both from the Appellant and from the witnesses called by the Respondents.
6. As a matter of historical fact those complaints seemed to fall naturally into two periods. The first period running from 2002 until April 2004 when, after some degree of difficulty and controversy, the Appellant settled into working as a Trainee Budget Support Officer, TBSO, on scale 4. There was then a period of acquiescence until, in May 2005, her then line manager invoked a managerial tool known as a Performance Capability Procedure or PCP. The complaints thereafter focused on the invocation of the PCP, its process and the grievances raised by the Appellant complaining first that there was no reason for her to be the subject of that procedure and secondly complaining about the reason why she was saying that she was being made the subject of that procedure.
7. The decision of the Tribunal upon which the appeal to this full hearing has been permitted was its characterisation of the complaints made during that first period as not comprising a single continuing act when taken together with the complaints made in respect of the second period. The effect of that was that, although they had evidence about and came to provisional conclusions of fact about the earlier period, in considering whether or not the Appellant had established her claim that she had been unlawfully discriminated against, the Tribunal did not consider at all the complaints that she made during the first period. They did, however, conclude that, contrary to an argument advanced by the Respondents, all the events from May 2005 through to June 2006 did constitute a single continuing act so that all of those matters of complaint were considered by the Tribunal. The Tribunal dealt with this issue in its consideration of the law and conclusions starting at paragraph 71 of the decision but, in particular, focusing on the time issue at paragraphs 75 through to 79. They reminded themselves of the guidance given to Tribunals dealing with such issues in two cases, the cases of Robertson and Hendriks. In relation to this aspect of the claim they said as follows at paragraph 77:

"In deciding whether all of these issues are in time, we have been guided by the decisions in Robertson and in Hendriks. In Robertson, the Court of appeal referred to the concept of a continuing act. It does not seem to us that the alleged failure properly to promote and/or appoint the Claimant to positions in the period up to December 2003, on the one hand, and the manner in which the PCP was conducted, on the other, from May 2005, constitute a continuing act. There is no material connection between the two sets of allegations other than that the Claimant was in the employment of the First Respondent at all material times. In that connection, we accept Mr Sutcliffe's submission that the only reason Mr Harris has been named as an individual Respondent is in an attempt by the Claimant to link those two matters. Mr Harris's involvement in 2003 was very different from that in 2006. In 2003, following letters from the Claimant to the HR Department, he reviewed the appointment process and concluded that the probationary period should not have been included. He accepted the Claimant's argument on that point. That was the end of his involvement in that issue. He had no further involvement in any matters involving the Claimant until 10 May 2005, which was the date of a meeting attempting to resolve the various claims and counter-claims by reaching an appropriate compromise. In our view, there is no connection whatsoever between those two separate sets of allegations sufficient to amount to any continuing act. There was no relevant practice, policy, rule or regime governing these various acts."

And then in paragraph 79 they said this:

"It follows that we are concerned to consider whether the Claimant has suffered unlawful race discrimination between May 2005 and June 2006. We say that because it seems to us that the Claimant has established that there was here an ongoing situation or continuing state of affairs over that period. Although Mr Sutcliffe argued, on a formal basis, that we should commence our enquiry on 21 December 2005, it did not appear that he put that argument with any great conviction. The First Respondent was operating the PCP throughout this period and the Claimant was raising grievances throughout this period. It would be quite artificial to seek to start our enquiry at some stage within that overall period. This was very clearly an act extending over a period."

8. The distinction between the two periods which the Tribunal identified was described by the Tribunal in paragraphs 4 and 5. The distinction which they saw as arising was that during the first period the Claimant applied for a number of jobs which more or less involved promotions, having been displaced by restructuring, and she was not appointed to any of the jobs for which she applied, until the point was reached that she was appointed to a position of trainee budget support officer. Then an issue arose as to whether that job would lead automatically to an internal promotion by raising the scale level of that job or whether there was simply a facility on her part to put herself in the position where the scale rate could be increased by obtaining not only the appropriate qualification but also racking up experience.
9. The distinction which the Tribunal saw between that first period, which concluded in early 2004, and the second period, which began in May 2005, was that the entirety of the second period concerned the invocation by the Respondents of the PCP as a management tool and the response of the Appellant to that. The Tribunal noted this at paragraph 87 of the decision. We have been taken helpfully by Mr Ilori through the correspondence which supports this conclusion that throughout the second period the Appellant was saying that the invocation of the PCP was not only unnecessary and erroneous but was an exercise of bad faith in that it was part and parcel of the continuing act on the part of the First Respondent to discriminate against her by denying her opportunities for promotion or career advancement through advancing the scale to which the post which she was qualified to perform and did perform should attract. However, as Mr Ilori accepts, what the Tribunal had to do was to consider whether the matters complained of did in fact constitute a continuing single series of acts or constituted different series of acts or different series of acts. The fact that the Appellant herself believed that they were all of a piece and part of an overarching act, whilst obviously relevant to the assessment of the Tribunal, was not of itself determinative of it.
10. HHJ Clark permitted this aspect of the matter to proceed because he concluded that, having looked at the judgment of the Court of Appeal delivered by Mummery LJ in Hendriks, it seemed to him arguable that her complaints in relation to promotion during the first period did form part of a continuing course of alleged discrimination and victimisation with the complaints in the second period.
11. The relevant passage in Hendriks in the judgment of Mummery LJ is to be found at paragraphs 50 to 52 with certain additional comments at paragraphs 53 and 54 in relation to case management. In particular in paragraph 51 Mummery LJ said as follows:

"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 this case…"

He then referred to a number of authorities, and then at paragraph 52 he says as follows:

"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 fore 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."

12. The complaint made by Mr Ilori on behalf of his wife is that by expressing themselves in the way that they did and in particular in the last two sentences of paragraph 77 to which we have already referred it is clear that contrary to Hendriks the Employment Tribunal had "concentrated on whether the concepts of a policy, rule, scheme, regime or practice in accordance with which decisions affecting the treatment of the Appellant are taken, fitted the facts of this case". He then submitted that as a result contrary to Hendriks the Tribunal had to treat it the concepts of policy, rule, scheme, regime or practice as a complete and constricting statement of the indicia of an act extending over a period. In that way the incidents indicative of a continuing act of racial discrimination in the first period were artificially cut out. He therefore said that in view of that error the Tribunal failed to consider that the first period and the second period were a continuing act on the basis that the substance of the complaints made by the Appellant throughout the two periods is essentially the same namely like the Respondents failure to properly promote her to positions of which she says she was qualified. He characterised the various incidents complained of as illustrative of the continuing state of affairs and he also contended that the Tribunal failed to recognised that the act of which the Appellant was complaining was the discriminatory state of affairs rather than just the particular incidents which she gave as illustrative of the occasions when this state of affairs could have been brought to an end. He says that they lost sight of the single overarching complaint which was her lack of career advancement on the ground of her race and that because she had complained of it she was victimised by the Respondents.
13. This is a very attractive and concise way of putting the case and no doubt was why HHJ Clark was persuaded that the point was arguable as indeed it is. However we have had the advantage of argument both in writing and orally from the Respondent and it is clear to us that there is nothing in the point made by Mr Ilori: that the way in which the Tribunal dealt with this aspect of the case, and in particular the way that they dealt with Hendriks and Robertson; which remotely suggests that they were committing the error which had been identified in Hendriks. It is right to say that they refer to there being no relevant practice, policy, rule or regime covering the various acts but that is very much as an afterthought at the tail end of their reasoning. It is clear from the totality of the decision that they looked at each and every matter of complaint, they then drew those matters together and sought to identify for themselves whether they did or did not constitute a single continuing series of acts. They concluded that in respect of the second period running from May 2005 to June 2006 they did but they were satisfied having heard all the evidence, and in particular the evidence of Dionne Walker who was the officer who invoked the PCP which triggered the second series of complaints, that the second series of complaints was separate and distinct from the various complaints made about lack of success in applying for jobs and obtaining promotion which had informed the earlier series of complaints. The Tribunal correctly identified that the complainant was saying that they were all part of a single overarching act namely: a discriminatory state of affairs; but the Tribunal concluded in their view that it did not. In our judgment there is nothing in the way in which the Tribunal approached this matter or expressed themselves in those relevant paragraphs of the decision which reveals that they erred in law in the way in which they applied Hendriks. Mr Ilori, though understandably reluctant to be pressed that far, in effect, in our judgment, is seeking to argue that the conclusion to which they came having applied the test correctly was a perverse one, that is to say one which effectively flew in the fact of the evidence. In our judgment there is nothing at all in that point either.
14. It may well be that the conclusion to which they came was not one which was welcome to the Appellant but in our judgment there was ample evidence upon which they could conclude that the complaints made by the Appellant did fall into two separate types: separated in time by a period of a year when there were no complaints at all; separated in personnel in the sense that the persons against whom the complaints were made were essentially different; and separate in type in that she was responding to the triggering by the Respondent of the PCP in the second period, a period which ran continuously through to June 2006 whereas in the earlier period she was complaining about quite separate and different things namely her attempts to obtain promotion and/or to obtain a satisfactory basis for her employment as a trainee BSO. We are constrained in this Tribunal only to uphold an appeal if an error of law has been committed by the Employment Tribunal. In this case notwithstanding Mr Ilori's impressive efforts to persuade us to the contrary we are not so persuaded and accordingly this appeal is dismissed.