United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR I RUHAZA (The Appellant in Person)
For the Respondent	MISS J SHEPHERD (of Counsel) Instructed by: Squire, Saunders & Dempsey (UK) LLP 2 Park Lane Leeds LS3 1ES


 


SUMMARY

RACE DISCRIMINATION

Direct

Indirect

Continuing act

The Employment Tribunal was correct to find that it had no jurisdiction to entertain claims for direct and indirect discrimination on the grounds of race as the claims were issued out of time, and no application had been made to extend time.

Although the Employment Tribunal may have misdirected itself as to the definition of direct discrimination, the claim was clearly presented out of time. There was no basis for saying that the Claimant had been subject to a continuing act of discrimination. The Employment Tribunal, had, however failed to deal with the issue.

Insofar as the Claimant's claims related to an alleged discriminatory policy or discriminatory advertisement such claims could only be brought by the CRE under ss28 and 29 of the Race Relations Act 1976.

HIS HONOUR JUDGE SEROTA QC

Introduction

1. This is an appeal against a decision of the Employment Tribunal at Manchester (Employment Judge Cook and lay members) sent to the parties on 7 October 2008. The Employment Tribunal dismissed the Claimant's claim of direct and indirect discrimination on the grounds of race as having been presented out of time.
2. The hearing of the appeal was delayed by reason of its long and tangled procedural history. On 18 November 2008 the Claimant served a 32 page manuscript Notice of Appeal; it was somewhat diffuse. It included allegations of bias on the part of the Employment Tribunal. On 8 January 2009, HHJ Birtles stayed the appeal for 28 days and directed the Claimant to serve an affidavit giving details of the alleged bias or improper conduct within 28 days of the seal date of the Order and, in default, the appeal be dismissed.
3. On 9 February 2009 the Deputy Registrar directed that unless the Claimant lodged his affidavit within seven days the appeal would stand dismissed. It would appear that the affidavit sworn on 13 February 2009 was put in an envelope and sent recorded delivery to the Employment Appeal Tribunal where it was delivered on 16 February. Apparently the contents of that envelope were lost; no record was made of what they were. On 9 March 2009 the Notice of Appeal was struck out by the Registrar on the basis that no affidavit had been served in accordance with the Order of 9 February.
4. An appeal to Cox J was dismissed on 13 May 2009. Cox J upheld the Registrar's decision on the time point and did not go on to consider the other matters raised by the Claimant as these fell by the wayside. The Claimant pursued an appeal to the Court of Appeal and on 9 June 2010 the appeal was allowed in part by the Court of Appeal and remitted to the Employment Appeal Tribunal. In particular the Court of Appeal took the view that the affidavit had been served in time, but having considered the affidavit considered that the Claimant's allegations of bias were unsustainable. The Court of Appeal considered, however, that other grounds of appeal relating to direct and indirect discrimination might be fairly arguable. Sedley LJ concluded his Judgment by noting that by reason of the complications that had arisen and of the complications that he was afraid were going to go on arising with Mr Ruhaza, who "is a serial litigant conducting his case in person", that the matter go back at the first instance to the President, so he could either deal with the matter himself or give directions to enable it to be dealt with in the best possible way. It should be stressed that at this point in time the case had not been 'sifted' or tracked.
5. On 6 July 2010, the President, Underhill J, having considered the case, directed that it should be listed for a preliminary hearing.
6. On 24 November 2010 the preliminary hearing came before HHJ Birtles. The Claimant was given permission to amend his Notice of Appeal, the original Notice of Appeal being too prolix; it was to be limited to five pages and three specific issues to which we will come in due course. On 2 February 2011 HHJ Birtles approved an amended Notice of Appeal.
7. Before we turn to the factual background we note that the proceedings before the Employment Tribunal were themselves protracted. The claim in the ET1, dated 15 February 2010, was subsequently clarified at a Case Management Discussion (CMD) on 10 April 2010 as being a claim for direct and indirect discrimination on the grounds of race. There were considerable delays by the Claimant in providing witness statements and disclosure; he put the delays down to his "serious mental illness", namely depression. The Employment Tribunal declined to strike out his claim. So far as we understand the matter (see paragraph 30 of the decision of the Employment Tribunal) the Claimant has brought at least five claims similar to the present claim, in different Employment Tribunals. At least one of those other claims found its way to the Court of Appeal. As we have recorded, the Court of Appeal in these proceedings described the Claimant in these proceedings as a serial litigant.

Factual background

8. We take this largely from the decision of the Employment Tribunal. The Claimant is a Francophone Burundi national. The Respondent is a small employment agency whose clients are predominantly in the North West of England. It generally places advertisements on behalf of its clients in newspapers; the advertisements in question in these proceedings were placed on behalf of a client, Franceline. Where an applicant wishes to register with the Respondent he would send it his CV. If the CV matched a current vacancy, the Respondent would contact the applicant and invite the applicant for interview. If the applicant accepts an offer of interview he is asked to complete various forms which will enable the Respondent to register the applicant.
9. On 2 March 2005 the Claimant submitted his CV via the Respondent's website. His submission was not related to any specific vacancy so he was not invited for interview and consequently was not registered. The Claimant, however, has asserted that he was registered with the Respondent from February 2005 and was the victim of a continuing act of discrimination which lasted until the date of the hearing before the Employment Tribunal. The Respondent denied that the Claimant had ever been registered and that in any event, in order to have been registered he would have had to undergo an interview. The Employment Tribunal found that he had never registered. This is an important finding because in the absence of registration there was no obligation or commitment on the part of the Respondent to offer him any jobs.
10. The question whether he had been registered or not, was not one of the issues referred to a full hearing by HHJ Birtles and is not a matter adverted to by the Court of Appeal. On a number of occasions before us the Claimant has sought to argue that he was registered and that the finding of the Employment Tribunal that he was not, was flawed or perverse. We have approached this appeal on the basis of the facts as found by the Employment Tribunal and on the basis of the grounds of appeal referred to a full hearing by HHJ Birtles. Accordingly we must approach this appeal on the basis that he had not registered with the Respondent.
11. After the Claimant had submitted his CV in March 2005, there was no further contact until 15 February 2007 when the Claimant expressed interest in two posts advertised on behalf of clients by the Respondent. These posts were for a French speaking bilingual freight co-ordinator and a French speaking bilingual sales administrator for its client Franceline. Both posts were situated in Manchester. It became apparent to the Claimant after communications with the Respondent that it was looking for someone living in the Manchester area. The Claimant was asked if he planned to relocate to Manchester and said that he did. The Claimant was sent an email inviting him to arrange an interview. He never did so and consequently was never registered.
12. The Claimant has asserted that the Respondent was guilty of indirect discrimination against black Africans, such as himself, by reason of a disproportionate effect on those living outside Manchester who were less represented by a policy of restricting job applicants to local residents. The Claimant's argument as explained by Lawrence Collins LJ in a similar case brought by the Claimant, where there had been a geographical requirement for applicants in an advertisement placed by the Respondent (Ruhaza v Platinum Resourcing Ltd [2009] EWCA Civ 184) in these terms:

"The applicant claimed that this geographical requirement amounted to indirect racial discrimination as racial diversity in the client's local area was different from national and international trends because black Africans like himself were less represented."

13. The Respondent heard nothing further from the Claimant for approximately nine months until 9 November 2007 when the Respondent placed a further advertisement for a bilingual operations co-ordinator on behalf of Franceline. The advertisement contained the following:

"Prefer to have a British national."

14. The explanation given by the Respondent, which is not relevant to the appeal, is that it did not appreciate that such wording might be regarded as discriminatory. The Principal of its client had a very strong French accent which some of her drivers found difficult to understand so they wished to employ a native Anglophone. In fact, the Respondent maintained it considered candidates who were not UK nationals and the post was filled by someone who was not a UK national.
15. The Claimant asserted that the preference expressed for a British national was discriminatory and was unjustifiable. The Respondent maintained that the claim was out of time. The Claimant's case was that when he saw the advertisement in November 2007 he realised that it was the same post advertised in February 2007 and he had been the subject of discrimination because the Respondent had asserted it was entitled to limit applicants to persons resident in the Manchester area where the posts were situated.
16. The Claimant's ET1 dated 15 February 2008 claimed compensation in excess of £150,000, including compensation for injuries to feelings (£25,000), injury to health (£20,000), aggravated damages (£20,000), and loss of past and future income (£93,000). The Respondent asserted that as the alleged indirect discrimination had concluded on 15 February 2007 the Claimant's claim had been presented out of time in that it should have been presented by 14 May 2007. The claim for direct discrimination arising out of the advertisement of 9 November 2007 was also presented out of time.
17. The Claimant asserted that the Respondent intended to use forged or edited email evidence.
18. The Claimant maintained before the Employment Tribunal that he had relied upon acts of discrimination as being part of a continuing act on the part of the Respondent. He asserted he had not been removed from the Respondent's database until 31 October 2007 when he received notice of job vacancy alerts. Discriminatory practices adopted by the Respondent continued "until today". The Claimant asserted before the Employment Tribunal that the preference for a British national showed that the Respondent had applied a provision, criterion or practice, which was discriminatory.
19. The Claimant, it is to be noted, brought a claim only against the Respondent, the employment agency, which had placed advertisements on behalf of its client, Franceline. Notwithstanding that the Claimant was offered the opportunity to join Franceline as a respondent, he chose not to do so.

The Decision of the Employment Tribunal

20. The Employment Tribunal took what the Court of Appeal described as a conscientious course of hearing all the evidence in the case before ruling on the time point, which gave rise to a jurisdictional issue. It ruled on the time point after hearing evidence and submissions and at the conclusion of the hearing.
21. At a case management discussion, presided over by Employment Judge Russell on 10 April 2008, the Claimant was asked by the Employment Judge when the acts of race discrimination took place and when was the final act upon which he relied. The Claimant's response was that, "last act was November/December 2007".
22. It was at this case management discussion that the Claimant was offered the opportunity to join the client, Franceline. The quotation to which we have referred was recorded by the Respondent in its own notes of the case management hearing. The Claimant placed this document before the Employment Tribunal. At paragraph 11 the Employment Tribunal identified the issues in the following terms:

"The Issues

11. After explaining the procedure and the fact that if either party wished to rely on any document, it needed to be drawn to the Tribunal's attention, at the start of the Hearing the issues were set out as being:-

(i) a complaint of direct racial discrimination -

in an advertisement the claimant received on 9 November 2007, the respondent stated that their client would "prefer to have a British national" as a Bi-Lingual Operations Coordinator. It was the claimant's case that the respondent had applied a provision, criterion, or practice - that of being a British national, which was a discriminatory provision, or practice which could not be justified, and

(ii) a complaint of indirect racial discrimination -

that on 15 February 2007 when he had applied for two positions (which was denied by the respondent) of French Bi-Lingual Freight Coordinator and French Bi-Lingual Sales Administrator, the respondent enquired as to whether he would be moving from his home in Coventry to Manchester'."

23. This formulation was criticised in the Court of Appeal by Sedley J at paragraph 23:

"I think I speak for the whole court when I say that we find this a most baffling formulation. Miss Levene tells us it was not hers; Mr Ruhaza has not said that it was his. The formulation of the first complaint -- that of direct racial discrimination -- first of all sets out something which, if true, looks almost unanswerable. It had nothing to do with whether this was a provision, criterion or practice with a disparate impact, and which therefore was capable or incapable of being justified. Those are the tests that apply to indirect discrimination claims. The issue cannot involve what the tribunal there set out. Secondly, as to the complaint of indirect racial discrimination, where the disparate impact of a provision criterion or practice does come into issue, so may justification, but neither of those issues is spelt out by the tribunal in relation to the second of the complaints. It is possible that there was some error of cutting and pasting, but it is not obvious that it was so."

24. After the Employment Tribunal had clarified the issues for determination, Miss Levene, counsel on behalf of the Respondent, made clear she would be submitting that the claims were presented out of time. The Claimant said there was a "need for clarification on the indirect discrimination". He maintained his claim "covered the period from the day of his registration in February 2005 'until today'". He went on to suggest his claim was therefore one in respect of an ongoing act and that he was not removed from the database up until 31 October 2007 when he received job vacancy alerts. Miss Levene went on to submit the Claimant had never previously suggested this was a case of ongoing discrimination and that the Claimant could not in any event complain about not being offered a job since he had never been registered. She submitted to the Employment Tribunal that the Claimant was attempting to change the basis of his pleading and that it was too late to do so. The Claimant confirmed that he was not applying to amend his claim and his case was that it was "explicit". The Employment Tribunal (paragraph 19), having considered the pleadings and the case management documentation confirmed that there were two claims to be considered; one of indirect discrimination stemming from the February 2007 advertisements and a claim of direct discrimination relating to the advertisement placed in November 2008. The Employment Tribunal twice outlined the issues for determination prior to the Respondent raising the time point at the beginning of the hearing. The Claimant confirmed in answer to questions from the Employment Tribunal that he did not want the Tribunal to exercise any "just and equitable" discretion to extend time. His argument was that the claim was presented in time and that he was an experienced litigant-in-person and understood the scope of the Tribunal's just and equitable jurisdiction, and was aware of the time limits for presentation of the claims to the Employment Tribunal.
25. The Employment Tribunal considered that the assertion by the Claimant that he was relying on a continuing act was at no stage part of his case. It heard no evidence on why the Claimant did not bring a complaint based on the provision, criterion or practice (which was denied) that he should be resident in the North West in February 2007. Any claim, to be heard in time, should have been presented by 8 May 2007 and was not. Accordingly the Employment Tribunal concluded that the claim for indirect discrimination was out of time. The Employment Tribunal emphasised that the requirement that a complaint must be presented within time was a jurisdictional requirement and unless time was extended at the discretion of the Employment Tribunal on the just and equitable ground, the Employment Tribunal would have no jurisdiction to entertain the claim. The Employment Tribunal therefore concluded that it was not a matter on which it could have any discretion to choose or refuse to hear a complaint.
26. So far as the claim for direct discrimination was concerned, the Employment Tribunal concluded this should have been brought by 8 February 2008 as the Claimant had received an email with relevant information on 9 November 2007. Therefore, the claim was lodged one week late on 15 February 2007. Again, the Claimant had offered no explanation for lateness. The Employment Tribunal noted that on 19 December 2008 in an email to the Respondent he threatened to file his claim by 21 December and made a further threat on 28 December. The Employment Tribunal noted that had those threats been carried through the proceedings would have been brought in time.
27. The Employment Tribunal (paragraph 32) noted that in his final submissions to the Employment Tribunal the Claimant sought to assert that proceedings had been delayed because he wished to resolve amicably "all these incidents by amalgamation" and pointed to a state of affairs seen to be discriminatory towards him. No evidence had been presented to this effect when the Claimant gave evidence. It had never previously been suggested by him, that he had delayed in taking proceedings because he wished to resolve matters amicably.
28. At paragraph 36 the Employment Tribunal refer to growing doubts about the Claimant's credibility and noted his frequent assertions that documents that did not support his position were either forged or had been edited.
29. It was the Respondent's case that the Claimant was required to be registered and the pre-requisite of registration was an interview. The Claimant said he had never been informed of this. He asserted the documents which purported to show he had been invited for interview had been forged or tampered with in order to bolster the Respondent's case.
30. At paragraph 37 the Employment Tribunal rejected the Claimant's evidence that he had found Ms Alexander of the Respondent's personal email address on the Respondent's website, and accepted her evidence that the Claimant would have had to have been given that address in an email from her personal address. That evidence was accepted by the Employment Tribunal and in particular it accepted that the Claimant had been invited to contact her secretary. The Employment Tribunal (paragraph 39) rejected the Claimant's evidence that the requirement of the three stage registration process and the requirement to attend interview had never been pointed out to him or that he had never been invited to attend for interview. The Employment Tribunal considered (paragraph 39) that the requirement to attend for interview was clearly set out in documents sent to the Claimant. It rejected the Claimant's submission that those documents had been tampered with or altered. The Employment Tribunal also noted (see paragraph 40) that the Claimant was offered a telephone interview by the Respondent which he declined to accept. His explanation was that he "distrusted all employment agencies".
31. The Claimant asserted that a requirement to attend an interview was an unreasonable requirement. The Employment Tribunal accepted the Respondent's case that the Respondents had a responsibility to their client group, the potential employers, to satisfy themselves that a candidate it put forward was both suitable for appointment and able to attend for work. In the circumstances it was not unreasonable to require someone who lived in Coventry and said he was willing to relocate to Manchester to attend for interview in order to complete a registration process. The Employment Tribunal had "no hesitation in concluding, if we needed to consider this matter, that the Claimant was not registered with the Respondent".
32. The Claimant also addressed submissions on the basis of breaches of Articles 5 and 49 of the Treaty of Rome; these were dismissed by the Employment Tribunal and form no part of our appeal. The Employment Tribunal at paragraph 44 made clear it could find nothing to support an allegation that the Respondent's witnesses had lied or fabricated documents; indeed the Employment Tribunal concluded they gave their evidence in a clear and honest way.
33. In the circumstances the complaints were presented out of the time and the Employment Tribunal concluded it had no jurisdiction to entertain the complaints, which were dismissed.

Notice of Appeal and Claimant's submissions

34. Mr Ruhaza submitted that the pleadings and evidence showed that he was registered with the Respondent, contrary to the findings of the Employment Tribunal, and there was no basis for the Employment Tribunal to find to the contrary. The Employment Tribunal made a fundamental mistake in asserting that the Claimant had been "frozen" since registration. He submitted that the Court of Appeal had said in terms that this view was supported by the Court of Appeal. We interpolate here that it is true that the Court of Appeal considered other allegations raised by the Claimant might require investigation and adjudication, however, it directed the matter should be referred back to the President who directed that the appeal should go to a preliminary hearing. At the preliminary hearing, HHJ Birtles directed that three issues that he had identified were the only ones that should go to a full hearing. HHJ Birtles limited the appeal to three issues identified by Sedley LJ; namely (a) the continuing act point (b) the formulation of the claim for direct discrimination and (c) the formulation of the claim for indirect discrimination; see the decision of HHJ Birtles paragraph 11 at page 95.
35. We are not able, therefore, as we have already said, to accept Mr Ruhaza's submission that he is entitled to re-argue the question as to whether he was registered and we do not accept that the Court of Appeal had said that the Employment Tribunal's finding in this regard were either wrong or perverse.
36. Mr Ruhaza again wished to re-argue (see his email of 1 June 2011) questions of fraud, tampering with evidence and perverting the course of justice; again, these are not matters that he is entitled to raise and we will not entertain them.
37. The Claimant asserted that he had always complained of a continuing act; we tried to pin the Claimant down as to the nature of the continuing act of which he complained. The continuing act, he submitted, was that he was not offered a post because he did not live in Manchester and that amounted to discrimination. By denying that the continuing act had been raised prior to the hearing the Respondent was seeking to pervert the course of justice.
38. He was the victim of a continuing policy of favouring local candidates. He wished to re-argue issues of registration, liability and remedy. He had proof that the Respondent's witness, Natalie Alexander, had lied in giving evidence. The Employment Tribunal did not check the evidence of fraud. His case on direct discrimination was such that he was bound to win. His case on indirect discrimination was such that he was bound to win. Further, he was bound to win in his arguments relating to the right to free movement under the Treaty of Rome (another matter we do not propose to deal with by reason of the Order of HHJ Birtles).

The Respondent's submissions

39. In relation to the argument that there had been a continuing act it was submitted that the Claimant only relied upon two matters; firstly he relied upon his application in respect of two positions on 15 February 2007 and secondly the receipt of the vacancies bulletin on 9 November 2007 which was said to amount to direct discrimination. The indirect discrimination related only to the matters arising in February 2007. Again this was made clear in paragraph 17 of the decision of the Employment Tribunal. Miss Levene submitted that there was no reference to any policy of the Respondent in the Claimant's ET1 and drew attention to the decision of Employment Judge Russell at the case management discussion of 10 April 2008 in formulating the issues as follows:

"The Claimant is black African. He is claiming both direct and indirect race discrimination. His indirect race discrimination claim relates to the fact he alleges that the Respondent favoured local candidates. He further alleges that there are statistically less black Africans in the local pool than in the national pool. He contends that the appropriate comparison should be made with the national pool rather than, for example, comparing the Manchester region with the Coventry region."

40. Miss Levene reminded us that the Claimant had not asserted that he had suffered discrimination by the Respondent under s.14 of the Race Relations Act (the liability of employment agencies). He had confined his complaints to the advertising of specific job vacancies where the advertisements were placed by the Respondent on behalf of another. The Claimant chose not to bring proceedings against that other, Franceline, under s.4(1), nor against the Respondent under s.33 for aiding and abetting the alleged discriminatory acts of its client, Franceline. Miss Shepherd went on to submit that although the Employment Tribunal did not specifically deal with the issue of the continuing act, it was clear on all the facts that the Claimant's submissions in this regard were without merit.
41. For the Claimant to be able to mount a claim in respect of a particular post in respect of which recruitment was taking place and where he was subjected to a general discriminatory practice, it is important to recall the finding of the Employment Tribunal, that the Claimant was not registered with the Respondent. The acts of which the Claimant complained were incapable of amounting to continuing acts. There were two discrete acts; the placing of the advertisements in February and the placing of the advertisement in November. Consequently both complaints were out of time.
42. Miss Shepherd submitted that in a case where a policy was being complained of rather than a complaint of indirect discrimination in relation to discrete matters, an issue of jurisdiction was raised. Relying on the decision in Tyagi v BBC World Service [2001] IRLR 465 (CA) she submitted that job applicants could only complain about specific employment offered. Complaints as to policy generally were not actionable at the suit of an individual claimant but only at the suit of the CRE (Commission for Racial Equality); see s.28 of the Act. Further, she made reference to Cardiff Women's Aid v Hartup [1994] IRLR 390 in support of the proposition that the placing of a discriminatory advertisement as such gives no right of action which only accrues if application is made for the post. The claim in this case would not have been against the Respondent as agency in any event, but against Franceline, the agency's client, although the Respondent as agents could be liable for aiding and abetting.
43. In relation to the formulation of issues, Miss Shepherd accepted that the decision of the Tribunal at paragraph 11 was "muddled". However, reading the Judgment as a whole it was clear that the Employment Tribunal correctly understood there were two issues to be determined and correctly applied the law relating to time limits. It was unnecessary for the Employment Tribunal to examine the merits of the claims by reason of its decision that the proceedings were out of time. It therefore did not go into the detail it otherwise might.

The law

44. S.1 of the Race Relations Act 1976 defines racial discrimination as follows:

"1 Racial discrimination

(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but—

(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it."

45. S.4 of the Act, which renders it unlawful for a person to discriminate in their employment practices, is as follows:

"s4

(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another—

(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b) in the terms on which he offers him that employment; or

(c) by refusing or deliberately omitting to offer him that employment.

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee—

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment."

46. The position of employment agencies is to be found in s.14.

"14 Employment agencies

(1) It is unlawful for an employment agency to discriminate against a person—

(a) in the terms on which the agency offers to provide any of its services; or

(b) by refusing or deliberately omitting to provide any of its services; or

(c) in the way it provides any of its services."

47. S.28 outlaws various discriminatory practices but provides that only the CRE can bring proceedings in respect of breaches.

"28 Discriminatory practices

(1) In this section "discriminatory practice" means—

(a) the application of a requirement or condition which results in an act of discrimination which is unlawful by virtue of any provision of Part II or III taken with section 1(1)(b), or which would be likely to result in such an act of discrimination if the persons to whom it is applied included persons of any particular racial group as regards which there has been no occasion for applying it; or

(b) the application of a provision, criterion or practice which results in an act of discrimination which is unlawful by virtue of any provision referred to in section 1(1B), taken with section 1(lA), or which would be likely to result in such an act of discrimination, if the persons to whom it is applied included persons of any particular race or of any particular ethnic or national origins, as regards which there has been no occasion for applying it.

[…]

(3) Proceedings in respect of a contravention of this section shall be brought only by the Commission for Racial Equality"

48. S.29 makes it unlawful to publish discriminatory advertisements but proceedings can only be brought by the CRE.

"29 Discriminatory advertisements

(1) It is unlawful to publish or to cause to be published an advertisement which indicates, or might reasonably be understood as indicating, an intention by a person to do an act of discrimination, whether the doing of that act by him would be lawful or, by virtue of Part II or III, unlawful.

[…]

(6) Proceedings in respect of a contravention of subsection (1) may be brought only—

(a) by the Commission for Racial Equality"

49. We now remind ourselves of s.68 of the Act that deals with the period within which proceedings are to be brought and in particular deals with continuing acts or acts "extending over a period".

"S 68 Period within which proceedings to be brought

(1) An [employment tribunal] shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of—

(a) the period of three months beginning when the act complained of was done; or

6) A court or tribunal may nevertheless consider any such [complaint or claim] which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(7) For the purposes of this section—

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

50. We need not concern ourselves with extensions of time on just and equitable grounds as provided for in s.68(6) because the Claimant refused to seek an extension of time on this basis and pinned his colours only to the mast that his case had been presented in time.
51. The Court of Appeal has given useful guidance on what constitute "continuing acts" in the decision Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96. Mummery LJ had this to say at paragraph 51:

"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 this 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."

52. It is clear from the decision in Tyagi that a claimant is limited to complaining, where there is said to be a discriminatory policy, in relation to the offering of employment opportunities to specific employment he has sought or not been offered. The claimant in Tyagi was of Indian ethnicity and in April 1997 he applied for a post as producer in the Hindi section of the BBC World Service but was rejected. In July 1998 he presented an application to the Employment Tribunal claiming that the selection process for the post was discriminatory. An Employment Tribunal held that the complaint was outside the statutory three month time limit and that it had no jurisdiction to consider the claim. Mr Tyagi appealed on the basis that the Respondent had operated a continuing policy of discrimination so there was a continuing act and his application was in time. The Court of Appeal approved the dictum of HHJ Collins who presided over the EAT appeal in these terms:

"It is easy to see in the case of an employee that an employer's policy may have a continuing discriminatory effect. In the case of someone who is not an employee and has to rely on s.4(l), the case for racial discrimination has to depend upon the arrangements which are made for the purpose of determining who should have employment, the terms on which that employment is offered or a refusal or omission to offer that employment. These are not continuing acts. These are one-off acts and therefore the line of authority which Mr Tyagi asks us to follow simply has no application. It might have been different, although we express no concluded opinion on the point, if Mr Tyagi had continued to be an employee of the BBC throughout the relevant period because, in that case, Mr Tyagi might have been able to rely on s.4(2)(b) discrimination in the way the employer afforded him access to opportunities for promotion, transfer or training, but that is not the case with which we are concerned today. So that in our judgment the first ground of appeal fails."

53. Brooke LJ accepted the Respondent's submission that Mr Tyagi's complaints as to the alleged policy could only be brought by the CRE save insofar as they had been directly applied to the Claimant pursuant to s.28. He said:

"In my judgment, he submitted correctly that it is these provisions that deal with the kind of situation about which Mr Tyagi may be concerned. Section 28(3) makes provision for proceedings in respect of a contravention of the section. A general discriminatory practice which, among other things, would be likely to result in an act of discrimination to the person to whom it is applied, including persons in any particular racial group, and as regards which there has been no occasion for applying it, is policed only by the Commission for Racial Equality. The way in which s.l bites on the actual treatment of an applicant or the actual application of a requirement or condition adverse to an applicant, in my judgment, means that it does not bite on a discriminatory practice which is not in action at all vis-à-vis a particular applicant if he is not employed by the employer at all so as to be denied access to the opportunities and benefits or otherwise treated disadvantageously in the ways mentioned in 5.4(2), and if he is not being treated unfavourably by not being offered a job because of a discriminatory practice because there is no job on offer."

54. The decision in Cardiff Women's Aid v Hartup is authority for the proposition that mere placing of a discriminatory advertisement is not an act of discrimination by an employer. In that case the Respondent placed an advertisement for a "black or Asian woman" for a particular post. The Claimant did not apply for the post but brought proceedings in the Employment Tribunal and claimed that she had been discriminated against on the grounds of her race contrary to s.4(1)(a) of the Act. It was held by the Employment Tribunal, presided over by HHJ Levy QC that placing a discriminatory advertisement was not an act of discrimination by an employer within the meaning of Part II of the Act. Causing an advertisement to be published which indicates "an intention" by a person to do an act of discrimination is made unlawful by s.29(1) in Part IV of the Act, but an intention to do an act of discrimination must be contrasted with an act of discrimination itself, and only the Commission for Racial Equality can bring proceedings in respect of a breach of s.29.

Conclusions and discussion

55. This claim has not been brought under s.14(1) in relation to services provided by the Respondent, but specifically relates to advertisements placed for Franceline. No claim has been made, as we have already noted, against that company under s.4(1). This was not a matter raised at the Employment Tribunal so far as we can tell and we say no more about it. However, as appears later in this Judgment, if, on its true analysis, the gist of the Claimant's claim concerns the nature of advertisements placed by the Respondent, the complaint to the Employment Tribunal could only be made by the CRE.
56. It is convenient to consider in order the issues relating to (i) the continuing act relevant to the crucial time issue and (ii) the issues of direct discrimination and indirect discrimination.
57. We firstly deal with the question of the continuing act. It seems to us that, as the matter was raised, the Employment Tribunal, as the Court of Appeal observed, was obliged to deal with the matter. In any event it seems to us that it is not necessary for specific reference to be made in the pleading to the Claimant having suffered as a result of an act continuing over a period for the point to be argued, providing that the evidence adduced to support the facts alleged and pleaded support such a case.
58. We have asked ourselves whether the evidence adduced by the Claimant supports the possibility of his having suffered as a result of an act of discrimination continuing over a period. It will be recalled that the Claimant first made contact with the Respondent on 15 February 2007 and sent his CV. He had telephone conversations with Natalie Alexander who observed that he was living in Coventry and asked if he was moving to Manchester. The fact that the Respondent may or may not have continued a policy is only relevant if the Claimant was affected by it. Nothing occurred between the Claimant and Respondent until November when he made contact again in relation to the post he had seen in February. Again, he never attended for interview although at some stage he was offered the opportunity to have the interview conducted by telephone, an offer he declined. His registration was never completed. It is important to recognise the important finding that he was not registered with the Respondent and that the Respondent was under no obligation to offer him jobs.
59. The case as clarified by the Employment Tribunal was that the Claimant had suffered indirect discrimination stemming from the advertisements in February 2007 and direct discrimination flowing from the advertisement published in November 2007.
60. As we have said, no claim has been brought under s.4(1)(a) against the putative employer. The claim relates to an alleged policy on the part of the Respondent employment agency; such a claim could only be brought by the CRE, so the Employment Tribunal had no jurisdiction to entertain such a claim.
61. There was no evidence of a continuing act of indirect discrimination that affected the Claimant. Unlike the paradigm case where a number of alleged incidents of discrimination are linked to one another and evidence a continuing discriminatory state of affairs affecting the claimant (see Hendricks), the only acts relied upon are the February advertisements, and what is asserted was an underlying policy to offer jobs to local residents only. The criterion complained of in relation to the November advertisement was a different criterion; nationality, not residence.
62. There is nothing to suggest in the evidence that the February 2007 advertisements and November 2007 advertisements were part of a single discriminatory act against the Claimant of indirect discrimination.
63. The Claimant's case had been at the CMD that the last act of discrimination relied upon was in November or December 2007, although it is quite unclear to us what this may have been, and there is no evidence of anything save the placing of the advertisement in November.
64. The claim for indirect discrimination based upon the February advertisements should have been brought by 14 May 2007 (the Employment Tribunal was in error when it put the date at 8 May 2007). The claim was still brought nine months out of time. The claim in respect of direct discrimination was a week late. The Claimant expressly refused to ask the Employment Tribunal to consider an extension of time on the just and equitable ground.
65. In any event, in relation to the complaint of indirect discrimination this, in our opinion, is a complaint about the Respondent's policy. The facts of this case cannot be distinguished from Tyagi. It will be recalled that in April 1997, Mr Tyagi, who was employed by BBC World Service, failed to obtain a post as producer for the Hindu section because the selection process was said to be discriminatory. His claim was brought in July 1998 and he asserted that the discriminatory selection policy was still in effect. The acts complained of here were, just as in Tyagi, one off acts. The Claimant might have had a claim against the employer as opposed to the Respondent agency but chose not to make such a claim. His claim, just as Mr Tyagi's claim, was a complaint about a policy, which could only be brought by the CRE under s.29 in circumstances where he could not show that the policy was being applied to him.
66. Merely seeing or producing evidence of a discriminatory advertisement is insufficient to found any liability; see Cardiff Women's Aid v Hartup.
67. It is clear from the decision of the Employment Tribunal it was satisfied that the acts of which the Claimant complained which were applied to him were discrete acts in February and November. It followed that the proceedings were commenced out of time and the appeal must fail. Further, even if the February and November advertisements could be "joined up", the Claimant's claim was still out of time by one week.
68. We accept the Respondent's submission that it is not necessary for us to determine issues relating to the formulation by the Employment Tribunal of the claims of direct and indirect discrimination. It is clear (and not disputed) that the Employment Tribunal's self-direction in paragraph 11 of direct discrimination is, as the Court of Appeal pointed out, quite unsatisfactory. The Respondent charitably calls it "muddled". The definition of direct discrimination as set out in paragraph 11(1) is more appropriate to that of indirect discrimination, the definition of which is not set out at all in 11(2). The definition of direct discrimination is, as we have referred to, set out in s.1(a) of the Act and indirect discrimination in s.1(b). It is helpful to remind ourselves of the passage in Harvey, division L, paragraph 289, which defines indirect discrimination and explains the differences between direct and indirect discrimination. Indirect discrimination consists of:

"…a provision, criterion or practice which puts persons of the same race or ethnic or national origins at a particular disadvantage when compared with others, and which cannot be shown to be a proportionate means of achieving a legitimate aim Lady Hale in R (On the application of E) v Governing Body of JFS and others [2010] IRLR 136, [2009] UKSC 15 said at paras 56-7:

'The basic difference between direct and indirect discrimination is plain: see Mummery LJ in R (Elias) v Secretary of State for Defence [2006] EWCA 1293, [2006] 1 WLR 3213, para 119. The rule against direct discrimination aims to achieve formal equality of treatment: there must be no less favourable treatment between otherwise similarly situated people on grounds of colour, race, nationality, or ethnic or national origins. Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins. Direct and Indirect discrimination are mutually exclusive. You cannot have both at once. As Mummery LJ explained in Elias at para 117:

"…the conditions of liability, the available defences to liability and the available defences to remedies differ."

The main difference between them is that direct discrimination cannot be justified. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.'"

69. We accept the submission that it is clear from reading the Judgment as a whole that the Employment Tribunal clearly understood that the claim of direct discrimination related to the advertisement placed on 9 November 2007, whereas the indirect discrimination related to the fact that Mr Ruhaza asserted the Respondent favoured local candidates. Even if the Employment Tribunal misdirected itself in any event and however one was to define direct discrimination, the time issue was dealt with correctly in relation to both heads of claim. Whether the claims were for direct or indirect discrimination, on the factual findings of the Employment Tribunal, the ET1 in respect of both was lodged out of time. This, as we have already said, was a matter that went to jurisdiction, and the Claimant refused to invite the Employment Tribunal to extend time on the just and equitable ground.
70. We can see no purpose in remitting this matter to the Employment Tribunal. We are satisfied the Employment Tribunal's decision was correct and on its findings and with a correct direction as to the law it was bound to have dismissed the claim. Further, and in any event, we are in as good a position as the Employment Tribunal to determine the issue. Remitting a case to the Employment Tribunal should be used as a last resort. "Ping pong", as some call it, generally serves litigants badly, prolonging things and increasing costs; see Carnwath and Jacob LJJ in Buckland v Bournemouth University Education Corporation [2010] ICR 908.
71. In the circumstances and for the reasons we have given the appeal is dismissed.