Appeal No. UKEAT/0812/02/MH

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 December 2003
Judgment delivered on 4 March 2004

Before
THE HONOURABLE MR JUSTICE RIMER
MS K BILGAN
MR D G LEWIS

MRS C L SPENCER	APPELLANT

HM PRISON SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C BOURNE
(of Counsel)
Instructed by:
Messrs Myer Wolff
Solicitors
King William House
Lowgate
Kingston upon Hull
HU1 1YE

	
For the Respondent	MR B CARR
(of Counsel)
Instructed by:
H M Treasury Solicitor
(Employment Team)
Queen Anne’s Chambers
28 Broadway
London SW1H 9JS	

THE HONOURABLE MR JUSTICE RIMER

Introduction
1.	This is an appeal by Mrs Claire Louise Spencer against the Decision of an Employment Tribunal sitting at Hull on 24 May 2003 and chaired by Mr C.T. Grazin. The Tribunal’s Extended Reasons were sent to the parties on 19 June 2003. Mrs Spencer was the Applicant before the Tribunal. By the time of the hearing, the sole respondent to her application, and now to this appeal, was her former employer. HM Prison Service (“HMPS”). The hearing was devoted to a preliminary issue which had been directed for the purpose of deciding (i) whether Mrs Spencer’s claims, or any of them, had been commenced out of time; and, (ii) to the extent that any of them had, whether it would nevertheless be just and equitable for the tribunal to consider them.

2.	Mrs Spencer had presented her Originating Application on 22 October 2001. The Tribunal held that (i) her claims in relation to her resignation (based on events occurring on 22 and 23 July 2001), (ii) her claims based upon events alleged to have occurred after those dates and (iii) her claim that she had been unfairly dismissed were all brought in time and could proceed to a substantive hearing. To the extent, however, that Mrs Spencer’s claims included a claim for alleged sex discrimination based on events occurring prior to 22 July 2001, the Tribunal held that it was presented more than three months after the act complained of. It concluded that section 76(1) of the Sex Discrimination Act 1975 (“the SDA”) precluded it from entertaining that claim, and adjourned for a further hearing the question of whether, under section 76(5), it would nevertheless be just and equitable for the Tribunal to consider it. By her appeal, Mrs Spencer challenges the Tribunal’s decision that her sex discrimination claim was raised more than three months after the act complained of. 

3.	We will refer straight away to the relevant provisions of section 76 of the SDA:
“76. Period within which proceedings to be brought
(1) An employment tribunal shall not consider a complaint under section 63 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
	…
(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-
(a) …
(b) any act extending over a period shall be treated as done at the end of the that period, and
(c) a deliberate omission shall be treated as done when the person in question decided upon it, 
and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act it if it was to be done.”

The nature of Mrs Spencer’s claims
4.	The Tribunal explained how originally Mrs Spencer’s claims were brought not just against HMPS, but also against 13 former colleagues in the prison service. It explained that it had given her leave to amend her Originating Application so as to add allegations set out in a document dated 23 May 2003. It also explained how she chose to discontinue the claims against the 13 individuals, on the basis that she would claim that HMPS remained vicariously liable for their acts. Mr Colin Bourne appeared before the tribunal for Mrs Spencer, as he has before us. Mr N. Cameron appeared before the tribunal for HMPS, although before us it was represented by Mr Bruce Carr. 

5.	The Tribunal heard no evidence from anyone and proceeded on the basis that the factual allegations made by Mrs Spencer were capable of being proved. Those allegations are extensive and serious, and of course are as yet unproved. We should, therefore, record that all the individual Respondents, to whom many of the allegations are directed, put in defences which denied them. HMPS also put in a defence which contained many denials or non-admissions, denied that it had discriminated against Mrs Spencer on the grounds of sex or had victimised her, and asserted that her originating application was out of time. It also pleaded the statutory defence provided by section 41(3) of the SDA that it had taken such steps as were reasonably practicable to prevent its employees from discriminating against her, although we were told that it withdrew that line of defence at the hearing before the tribunal.

6.	Although the Tribunal found it unnecessary to do so, we consider that we should summarise the general nature of the complaints Mrs Spencer makes. Box 1 of her Originating Application asserted that her claims were for “sexual discrimination, constructive dismissal, breach of contract.” She pleaded her case in 43 paragraphs of “Grounds of Application.” In paragraph 1, she alleged that she was employed by HMPS from May 1997, commenced training as a prison officer on 16 June 1997 and was posted to HMP Hull on D Wing in July 1997. In paragraphs 2 to 5, she levelled allegations of what we will summarise as sexual harassment against various colleagues, namely officers Craggy, Anthony and Baxter. This was in the nature of offensive personal comments said to have been made against her over a period which lasted from the time she started employment as a prison officer until she left D Wing in about February 1999. The comments were of a sexual nature, and included remarks whose sense was to disparage her as a woman.

7.	Paragraphs 6 to 11 cover the period from February 1999 to late 1999. During this time Mrs Spencer was in the Inmate Development Unit and worked alongside officers Pinder, Palmer, Ball, Bell, Sykes and Robinson. She alleges that they all subjected her to the same kind of abuse as she had suffered on D Wing.

8.	Paragraphs 12 to 28 cover the period of Mrs Spencer’s employment from late 1999 to about June 2000. During this period she worked part of each day in the Sentence Planning Office and the remainder in other areas, including the Labour Control Office and on the wings. She alleges that during this time she was subjected to the same or similar type of abuse as she had been previously suffered. She makes allegations against Senior Officer Hince to the effect that he deliberately allocated her to duties working with sex offenders, which he knew would make her feel uncomfortable and vulnerable. She makes allegations against Officer Pinder, who made offensive comments to the effect that women should not be doing the job of a prison officer. By the end of 1999, Mrs Spencer was pregnant, and she notified HMPS of it in early 2000. She alleges she was then subjected to abuse specifically related to her pregnancy, including, for example, the making of sarcastic and abusive comments about her ante-natal visits. She complained to Senior Officer Hardy and Senior Officer Bathgate, both of whom told her that “there was nothing that could be done and that she should try to be tougher because she did not have much time left.” She alleges that she suffered abusive, pregnancy-related comments from Officers Bell and Robinson. She says that a probation officer, June Burns, witnessed this conduct and told her that she had reported it to Senior Officer Bathgate. The following day, Mrs Spencer saw Principal Officer Allen and Senior Officer Bathgate. Principal Officer Allen said he had spoken to the officers concerned and warned them of their conduct. Mrs Spencer makes allegations against Officer Sykes, who shouted at her about wanting special treatment because she was pregnant. Senior Officer Hardy told her that the fact of her pregnancy was not liked by other officers “and she would have to learn to keep her mouth shut.” He said she had made everyone’s life very difficult and suggested she should start her maternity leave early. Mrs Spencer alleges that between about May and June 2000 the abuse of her by officers Pinder, Palmer, Ball, Bell, Sykes and Robinson became worse. She alleges that “Remarks were made about the size of [her] breasts and her bottom. Officer Pinder asked [her] if he could rub cream into her swollen breasts.”

9.	At some uncertain date between June and 26 August 2000 (when her baby was born) Mrs Spencer commenced her maternity leave. She remained away until 4 February 2001. She deals with this period in paragraph 29. On 29 January 2001, she spoke to Principal Officer Rothon about arrangements for her to be provided with private facilities for expressing milk. She alleges he was abrupt with her, saying she would have to buy her own fridge as “we’re not doing anything else for you.” She complains about the arrangements which were offered to her, and spoke to Governor Proctor who made alternative, and acceptable, arrangements for her.

10.	Paragraphs 30 to 35 deal with the period February 2001 to May 2001, following Mrs Spencer’s return to work. She complains she was regularly subjected to adverse comments about breast-feeding and, having asked to work 25 hours per week, about being lazy. She levels particular allegations of offensive remarks and conduct against Officers Blythe and Nadine. She alleges that Governor McPhee complained to Mrs Spencer’s partner (also a serving officer at HMP Hull) about the arrangements made for her breastfeeding of her baby, and that “Governor Uzstan told [her] that she would have to learn to be more like a man.” She alleges that Governor Proctor subjected her to intrusive and embarrassing questions about her baby’s feeding habits, indicating that he found the baby’s habits unusual, and complaining that Mrs Spencer seemed to want preferential treatment. Mrs Spencer asked Governor Proctor for the preparation of a “return to work plan” for her, but he refused, telling her that “there was nothing in place for women returning after maternity leave.”

11.	In May 2001, Mrs Spencer took eight weeks parental leave, returning to work on 22 July 2001. Paragraph 36 deals with her return to work on F Wing. She alleges that Officer Wood told her that she should not be in the job, proceeded to tell a series of sexist jokes, said that “all women had the brains of a gnat” and made an offensive remark about her genitals.

12.	That appears to have been the alleged last straw. Paragraph 37 deals with Mrs Spencer’s resignation. She handed in her letter of resignation on 23 July 2001. Her letter refers to a career change, but she alleges that she told Governor Wagstaff that the real reason was that she was unable to continue to take the harassment and name calling to which she had been subjected. She alleges that Governor Wagstaff “told [her] that he was aware that Hull Prison had a problem with women working in the establishment but he was finding it difficult to do anything about it.”

13.	In paragraph 38, Mrs Spencer alleges that “the name calling and offensive remarks were all part of a continuing course of conduct which continued up to and including the date of termination of [her] employment on 31st August 2001.” In paragraph 39, she alleges that:
 “she was discriminated against by each of the Respondents and further that she was subjected to offensive remarks and harassment because she was pregnant.”

14.	Paragraph 40 alleges that she was victimised by Officer Baxter as a consequence of making a complaint to Governor Newell “and that such victimisation was part of the continuing course of conduct.” Paragraphs 41 and 42 read:

“41. [Mrs Spencer] alleges that [HMPS] was always aware, or ought to have been aware that [Mrs Spencer] was being subjected to the treatment alleged and took no steps, or no sufficient steps, to ensure that such conduct towards [her] ceased.”
42. [HMPS’s] failure to deal adequately or at all with the conduct of its officers towards [her] was such as to destroy the mutual trust and confidence, which must exist in an employment relationship. As a consequence of the conduct of the named officers and of [HMPS’s] failure to deal adequately or at all with such conduct [Mrs Spencer] resigned her employment.”

Mrs Spencer concludes by alleging that she was discriminated against by the Respondents contrary to sections 1(1)(a) and 6(2)(b) of the SDA, and that she was victimised by HMPS and Officer Baxter contrary to section 4(1)(b) and (d) of the SDA. She asks for appropriate declarations and compensation.

The Decision of the Tribunal
15.	As we have said, the Tribunal found that Mrs Spencer’s complaint in respect of alleged sex discrimination occurring prior to 22 July 2001 was presented more than three months after the acts complained of and so was out of time. It is that conclusion which Mrs Spencer challenges on this appeal.

16.	In terms of the provisions of section 76(1) of the SDA, the main issue for the Tribunal was whether Mrs Spencer’s complaints of discrimination against HMPS over the period of her employment could be regarded as in the nature of a complaint of an “act extending over a period …” within the meaning of section 76(6)(b). If it could, then such act would, by the same subparagraph, “… be treated as done at the end of that period…”. Provided that the Originating Application was presented within three months of such end, it would be in time and would entitle Mrs Spencer to prove the whole history of her complaints. If, however, the correct view was that each complaint raised by Mrs Spencer was properly to be regarded as a discrete one, not forming part of an “act extending over a period”, it would follow that the effect of section 76(1) of the SDA was, on the face of it, to confine her to claims in respect of complaints occurring within the three month period. 

17.	The Tribunal’s conclusion was that the acts of which Mrs Spencer complained could not be regarded as an “act extending over a period.” It regarded itself as led to that conclusion by the decision of this appeal tribunal in The Commissioner of Police of the Metropolis v. Hendricks, 5 November 2001, unreported, His Honour Judge Serota QC presiding. Having so concluded, it took the view that the earliest acts of alleged discrimination which might arguably be said to be covered by Mrs Spencer’s originating application were those alleged to have occurred on 22 July 2001, although it recognised that that was three months and a day before the presentation of the originating application. The Tribunal said of this:

“21. … Strictly, of course, [Mrs Spencer’s] alleged treatment on 22 July 2001, as a discrete act of discrimination, might be argued to be out of time but it seems to us that we must and do find that the alleged treatment on 22 July 2001 and the resignation on 23 July 2001 are an act extending over a period and accordingly the matters referred to in Paragraphs 36 and 37 (together with any allegations of conduct after those dates) are in time. We find that all other matters are out of time.”

The appeal to this Appeal Tribunal
18.	Before us, the main area of battle has been as follows. Mr Bourne, for Mrs Spencer, submits, in support of the appeal, that the Tribunal misdirected itself in its conclusion that the matters complained of did not constitute, or were not capable of constituting, an “act extending over a period” from June 1997 to (at least) 23 July 2001. For HMPS, Mr Carr resisted this argument but also submitted, in support of a cross-appeal, that even if they did constitute an “act extending over a period” the last day of the period was 22 July, not 23 July 2001. If so, then the complaint of sex discrimination was out of time in its entirety. We will deal separately with the appeal and cross-appeal. 

(a) The appeal
19.	With no disrespect to the Tribunal’s full and careful Decision, we do not propose to devote very much of our attention to the Tribunal’s reasons for its conclusion that the acts complained of did not constitute an “act extending over a period …”. That is because, since the matter was before the Tribunal, the decision of this Appeal Tribunal in Hendricks, which the Tribunal had regarded as governing the disposition of the issue before it, has been reversed by the Court of Appeal (see [2003] ICR 530). That was a fortunate turn of events for Mrs Spencer. Mr Bourne had recognised that the decision of this Appeal Tribunal in Hendricks was unhelpful to her case, and had sought, unsuccessfully, to persuade the tribunal that it was relevantly distinguishable. On the other hand, Mr Cameron, counsel for HMPS before the tribunal, submitted successfully that Mrs Spencer’s case was indistinguishable from Hendricks. Not surprisingly, Mr Bourne is content before us to live with the Tribunal’s finding that the two cases are not relevantly distinguishable although it appears to us that there may be at least one arguably relevant distinction between them.

20.	The main thrust of Mr Bourne’s argument to the Tribunal, as summarised in paragraph 12 of the reasons, was that the allegations in Hendricks were in the nature of a series of discrete allegations against individual officers, whereas in Mrs Spencer’s case:

“… The connecting factor was the failure on the part of the Respondent, as set out in Paragraph 41, with knowledge or constructive knowledge of [Mrs Spencer’s] treatment, to take no steps, or no sufficient steps, to ensure that such conduct towards [Mrs Spencer] ceased. That itself was an act of discrimination and was a continuing act throughout that period.”

21.	The Tribunal did not accept that submission. It summarised its reasons for its conclusion as follows:
“20. On the basis of those quotations from the decision in Hendricks, it is quite clear to us that the case, as put by Mrs Hendricks, was identical in all material respects to the case now put to us by Mr Bourne on behalf of [Mrs Spencer]. Both alleged a series of discrete acts by discrete Police Officers/Prison Officers over a very lengthy period of time. Both alleged that the employer of those Officers had permitted the acts to take place and/or had failed to take action to prevent the acts taking place. The distinction which Mr Bourne seeks to draw is not a real distinction.
21. In those circumstances, we are in no doubt that this Tribunal is bound by the decision in Hendricks. We are bound to rule, therefore, that there was here no act extending over a period as is contended by Mr Bourne on behalf of [Mrs Spencer]. All of [Mrs Spencer’s] allegations contained in Paragraphs 1/35 of the Originating Application relate to events which occurred up to February 2001. There is no allegation of any misconduct on the part of the Respondent or any of its servants until 22 July 2001. Adopting, at least for this part of our decision, the submissions of Mr Cameron, we find that there was sufficient of a gap between the events up to and including February 2001 and [Mrs Spencer’s] return to work in July 2001 to prevent any acts prior to July 2001 forming any part of any act extending over a period. …”
22.	Hendricks was a case of alleged race and sex discrimination. The claimant was a police constable, who made allegations of discrimination against her over a period of years by many police officers. The leading judgment of the Court of Appeal was delivered by Mummery LJ, who recorded in paragraph 27 that, although the acts complained of appeared on their face to be separate incidents, Miss Hendricks’s Counsel asserted that they constituted a “seamless whole of continual and continuing less favourable treatment by the commissioners’ officers.” The Court of Appeal, reversing the decision of this Appeal Tribunal, held that the Employment Tribunal had been entitled to make the preliminary decision it did that it had jurisdiction to hear Miss Hendricks’s allegations of discrimination, although Mummery LJ did not agree unreservedly about the way in which either the Tribunal or this Appeal Tribunal had approached the case. He said this about the general approach to questions as to whether “any act” can be regarded as extending over a period for the purposes of section 76(6)(b):

“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, 580-581, paras 21-23, Rovenska v. General Medical Council [1998] ICR 85, 96, and Cast v. Croydon College [1998] ICR 500, 509. (Compare the approach of the appeal tribunal in Derby Specialist Fabrication Ltd v. Burton [2001] ICR 833, 841 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 section 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 side-tracked by focusing on whether a ‘policy’ could be discerned. Instead, the focus should be on the substance of the complaint made 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.”

23.	In the present case, Mr Bourne urged upon us, as he had upon the Tribunal, that the essential thrust of Mrs Spencer’s complaints is that she was the victim of discriminatory conduct by a number of prison officers over a period running from June 1997 until 23 July 2001 and that her case is that, as she pleads in paragraph 41 of her grounds of complaint, HMPS was always aware, or ought to have been aware, of the treatment to which she was subjected, but took no or insufficient steps to ensure that it ceased. She is, therefore, alleging the existence of a continuing discriminatory state of affairs for which HMPS was responsible by knowing omission.

24.	We accept that that is a fair summary of the essence of Mrs Spencer’s case, and that, in its essentials, it is relevantly similar to Hendricks. It does not, however, appear to us that it is precisely on all fours with Hendricks, at any rate in one respect. Paragraph 14 of the Tribunal’s Reasons recorded Mr Cameron’s submissions that the commencement of the periods when Mrs Spencer was absent from work (including her absence on maternity leave) operated to bring to an end any act which might be regarded as having extended down to that point; and the Tribunal found, in paragraph 21, that Mrs Spencer’s absence from work between February and July 2001 prevented “any acts prior to July 2001 forming any part of any act extending over a period.” This finding is to be contrasted with the position in Hendricks in which, although Miss Hendricks was absent from work for a time on sick leave, she made allegations of continuing less favourable treatment whilst she was so absent (see paragraphs 23 and 48 of Mummery LJ’s judgment). 

25.	Mr Carr submitted that the Tribunal’s finding in the present case was one it was entitled to make, and which we should not question. In our view, however, it is not a finding which requires this appeal to be decided in favour of HMPS. Subject (a) to the next head of argument to which we come and (b) the point raised by the cross-appeal, we are satisfied that Mrs Spencer’s pleaded case, looked at in the light of the guidance given by Mummery LJ in paragraphs 51 and 52 of his judgment, is one she should be entitled to pursue to a substantive hearing on the merits, because we are satisfied that her pleading raises a good arguable case that - adopting and adapting Mummery LJ’s words in paragraph 49 - there was an “act extending over a period” for which HMPS can be held responsible as a result of what it omitted to do. We do not regard the fact that there were periods when Mrs Spencer was away from work as being obviously fatal to her case in this respect, and we do not follow the logic of the argument that it should. If, in principle, she is able to prove a continuing discriminatory state of affairs for which HMPS was responsible, being one which exists over the periods of time she asserts, we do not understand the notion that the enjoyment by her of havens of immunity from it during her absences from work should be regarded as necessarily occasioning a relevant interruption of the course of the discrimination. No doubt she was not suffering from its direct impact during those absences. But if, as she claims, the discrimination re-manifested itself immediately upon her return to work, it appears to us that the better analysis of the position may be that the discriminatory state of affairs ought to be regarded as also continuing during the periods of absence: the fact that the victim has temporarily removed herself from the range of the discriminators’ fire, does not mean that they do not in the meantime remain on the alert to resume fire once she is again within range. If absence from work on maternity leave interrupts the continuing act, why is it not also interrupted each weekend or other leave period enjoyed by the employee?

26.	Mr Carr, however, also had a further point in answer to the appeal. He said that the decision of the Court of Appeal in Hendricks is substantially based on the decision of this Appeal Tribunal in Burton v. De Vere Hotels Ltd [1997] 1, a decision which has since been disapproved by the House of Lords in Macdonald v. Ministry of Defence [2003] ICR 937. He said that, to the extent therefore that Mrs Spencer’s case against HMPS is based on Burton, the basis for her case has been removed.

27.	In paragraph 28 of his speech in Macdonald, Lord Nicholls of Birkenhead summarised Burton as follows:

“… two black waitresses, clearing tables in the banqueting hall of a hotel, were the butt of racist and sexist jibes made by a guest speaker entertaining the assembled all-male company at a private dinner party. The appeal tribunal held that the employer of the waitresses had racially discriminated against the waitresses. Had the assistant managers in charge for the evening been properly instructed, the two young women would not have suffered embarrassment. They could, and should, have been withdrawn from the room.”

28.	Lord Nicholls then explained, in paragraphs 29 to 37, why Burton is an unsatisfactory decision. The most relevant criticism of it for present purposes is, we consider, that it proceeded on the basis that the employer’s failure to take reasonable steps to protect its employees from racial or sexual abuse by third parties was itself unlawful discrimination by the employer, even though the employer’s failure had nothing to do with the sex or race of the employees and therefore did not amount to discrimination of a nature rendered unlawful by the SDA or the Race Relations Act 1976. Mr Carr’s submission was that it is not, therefore, enough for Mrs Spencer merely to point to omissions on HMPS’s part to stamp out any discriminatory practices on the part of its employees towards women: it had also to prove that the failure itself amounted to unlawful discrimination towards Mrs Spencer on the grounds of sex.

29.	Mr Bourne squarely recognised this, but says that that is Mrs Spencer’s case as pleaded in paragraph 41 of her grounds, which we have earlier quoted. In one of its alternatives, that paragraph alleges that HMPS knew that Mrs Spencer was being subject to the treatment of which she complains, but took no or insufficient steps to ensure its cessation. Mr Bourne submits, and we agree, that the treatment referred to was clearly treatment in the nature of allegations of discrimination against Mrs Spencer on the grounds of her sex, and that paragraph 41 therefore raises an arguable case against HMPS itself of direct discrimination against Mrs Spencer on the grounds of sex, a claim which has always been there from the outset of Mrs Spencer’s application. Whether Mrs Spencer will be able to make it good at the substantive hearing is another matter, but Mr Bourne submits, and in principle we agree, that she must at least be entitled to make out her case on the facts if she can. 

30.	For these reasons, but subject to the point raised by the cross-appeal, our views so far are that Mrs Spencer’s appeal should be allowed. We turn to the cross-appeal.

(b) The cross-appeal
31.	Mr Carr’s submission was that the Tribunal was in error in finding that the acts of sex discrimination alleged to have occurred on 22 July 2001 were part of an act extending over a two-day period including 23 July 2001 on which day Mrs Spencer resigned. He says that the act of resigning on 23 July was not an “act complained of” for the purposes of section 76(1)(a), it was at best a reaction to the prior such acts. The alleged acts of 22 July 2001 could constitute an “act complained of” but the problem in relation to them is that the Originating Application was presented a day after the expiration of the three-month time limit. Mr Carr’s submission was that, if the Tribunal was right that all the matters complained of were discrete acts not forming part of an “act extending over a period,” then it was wrong to find that the claim in respect of the discrete act alleged to have occurred on 22 July 2001 was brought in time. His more fundamental submission was that, if 22 July 2001 is to be regarded as the end of the long period over which the extended act complained of was committed, then that extended act was “done” on, and no later than, 22 July 2001 (see section 76(6)(b)), with the consequence that Mrs Spencer’s claim in respect of it was brought one day out of time. 

32.	We do not regard this submission as correct. Mrs Spencer’s pleaded case is that the discriminatory conduct of which she complains continued not just until 22 July 2001, but down to the date her employment terminated, 31 August 2001 (see paragraph 38 of her grounds). It is no part of her pleaded case that it stopped on 22 July, or even on 23 July when she gave her letter of resignation, and the focus by Mr Carr on the former date appears to us to be artificial and misplaced. By contrast, it was important for the tribunal to focus on the events of 22 and 23 July 2001, because its approach to Mrs Spencer’s claim was that it consisted of a number of discrete complaints, so that it had to identify which complaints were brought in time and which were not. We also regard Mr Carr’s submission as out of line with the approach adopted by this Appeal Tribunal in Derby Fabrication Ltd. v. Burton [2001] ICR 833. In giving the judgment, Keene J said:

“20. In a case where the repudiation of the contract consists of an accumulation of events over a period of time, it would be wrong to seek to isolate individual incidents. The continuing conduct of the employers or their continuing failure to prevent racial abuse and discrimination constitutes what the appeal tribunal in Harrold v. Wiltshire NHS Trust (unreported), 16 March 1999, described as the underlying racially discriminatory behaviour, and would bring about the ‘other detriment’ within section 4(2)(c) of the Race Relations Act 1976. Section 68(7)(b) provides that any act extending over a period shall be treated as done at the end of that period for the purposes of the time limit provision. It follows that it makes no difference whether the three-month period is seen as commencing with the applicant’s resignation, because that was his acceptance of the repudiation of the contract and hence a constructive dismissal, or with the end of the period of racially discriminatory conduct amounting to repudiation. It makes no difference because it was only the applicant’s resignation which brought the latter period to an end.”

33.	Mr Carr recognised that those observations were unhelpful to his argument, and he invited us to depart from them. We are not disposed to do so since we are not persuaded that the approach they reflect was wrong, and we derive comfort in that from the fact that Mummery LJ referred to Derby with apparent approval in paragraph 51 of his judgment in Hendricks. Applying the like approach to this case, we see no reason why the period of the continuing act of which Mrs Spencer complains should be regarded as ending any earlier than 23 July 2001, when she gave her notice, and her pleaded case is that it in fact continued to 31 August 2001, when her employment actually ended. The reasoning in Derby shows that it is arguable that the period of the continuing act of which Mrs Spencer was complaining did not end until 31 August 2001. We dismiss the cross-appeal.

Result
34.	We will allow Mrs Spencer’s appeal and direct that all her claims may proceed to a substantive hearing before the Employment Tribunal, subject to any further interlocutory directions that that tribunal may make. We dismiss the cross-appeal