Appeal No: UKEAT/0651/05/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 31 January 2006

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

DR VIVIENNE JEAN LYFAR	APPELLANT

BRIGHTON & SUSSEX UNIVSERITY HOSPITALS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MARK AFEEVA
(of Counsel)
Instructed by:
Webster Dixon Solicitors
Fourth Floor
Thavies Inn House
3-4 Holborn Circus
London EC1N 2HA
	
For the Respondent	MR CLIVE SHELDON
(of Counsel)
Instructed by:
Messrs DMH Solicitors
40 High Street
Crawley
West Sussex RH10 1BW	

SUMMARY

Race Discrimination 

The Employment Tribunal Chairman divided the 17 allegations of race discrimination formulated by counsel into 4 periods. These periods were derived from that document. The finding that periods 1 and 2 could not be bolted to period 3 was a finding of fact: Robertson v Bexley Community Centre [2003] IRLR 434.  No error of law.  The Employment Tribunal Chairman did not err in applying what on analysis was the Hendricks v Commissioner for the Police Metropolis [2003] IRLR 96 test as to a continuing act.  It was unnecessary to decide whether Robertson on this point was decided without reference to binding authority i.e. Hendricks but the Malingios test was not passed.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about case management of race discrimination claims said to have been made out of time.  I will refer to the parties as Claimant and Respondent.

Introduction
2.	It is an appeal by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal Regional Chairman, Mr R Peters, sitting alone at Brighton, registered with reasons on 23 June 2005.  The rules required him to sit alone, and by Employment Tribunals Act 1996 s28 so do I. The Claimant was represented there and here by Mr Mark Afeeva of Counsel; the Respondent by a solicitor and today by Mr Clive Sheldon of Counsel.  

3.	The Claimant claimed race discrimination consisting of acts extending over a period of time.  The Respondent resisted the claim and alleged that certain were out of time.  

The issues
4.	The preliminary hearing was set up under Employment Tribunal Rules 2004, 10, 14 and 17.  These give wide powers of case management to a Chairman in accordance with the overriding objective in Regulation 3.  They include the determination of preliminary points and striking out.  The time point arises in s68 of the Race Relations Act 1976:
“(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;
(7) For the purposes of this section 
(a) ...
(b) any act extending over a period shall be treated as done at
the end of that period"; and
(c) a deliberate omission shall be treated as done when the person in question decided upon it”.
5.	The essential issues, as defined by the Chairman, were:
 “21.1 When was the complaint presented to the Tribunal?
21.2		Are there alleged acts of less favourable treatment which pre-date three months prior to such date of presentation?
21.3		If so, are those alleged acts matters extending over a period of time which ends within that three months?
21.4 	If not, would it be just and equitable to consider such out of time complaints”?

6.	The Chairman decided that most of the claims were out of time, but allowed five to be heard.

The appeal
7.	The Claimant appeals against that judgment.  Separately, another Employment Tribunal Chairman decided that four of the remaining five grounds left by Mr Peters should be dismissed because the Claimant did not activate the grievance procedure in accordance with the 2002 Act and Regulations prior to presenting the claim.  The Claimant’s appeal against that is pending.  If it fails, she is left with one of her 17 grounds to be tried at an Employment Tribunal.  

8.	Directions sending the appeal to a full hearing were given at a Rule 3 hearing by Rimer J following oral representations by Mr Afeeva.  

9.	The Chairman directed himself by reference to the relevant provisions of the Race Relations Act and what I hold to be the leading authority to which I will return.  

The facts
10.	The facts can only be tentatively stated because there has, of course, been no trial.  The Respondent is an NHS Trust on the south coast of England.  The Claimant has (since 1985) been, and still is, employed as a Principal Clinical Bio-Chemist at a salary of over £41,000 a year.  She is black Afro-Caribbean.  The Tribunal found as follows:
“2.	An internal complaint was raised against the Claimant by another member of staff (AR). The complaint was that the Claimant had bullied and harassed her.
3.	That complaint was the subject of an internal investigation, which came to the view that there was sufficient to warrant disciplinary action against the Claimant.
4.	As a consequence, the Claimant attended a disciplinary hearing on 11 October 2004. The outcome of that hearing was that the disciplinary charges against the Claimant were dismissed.
5.	Following that, the Respondent's General Manager, Judy Piper, endeavoured to arrange a meeting with the Claimant to discuss issues arising as a consequence of the disciplinary action. No such meeting took place.
6.	On 9 November 2004, the Claimant wrote to the Respondent's Director of Personnel registering a grievance as to the conduct of the disciplinary process.
7.	The Claimant was informed of the outcome of that grievance on 20 January 2005.
8.	On 24 February 2005, the Tribunal received, by facsimile transmission from solicitors acting on the Claimant's behalf, a Tribunal Claim Form dated 27 January 2005 making a series of complaints of racial discrimination”.

11.	The claims span four periods.  (1) An investigation which found that there was a case for the Claimant to answer in August 2004.  (2) The hearing of disciplinary charges on 11 October; they were dismissed.  (3) What Judy Piper did after the disciplinary hearing.  (4) The handling of the Claimant’s grievance submitted on 9 November 2004.  

12.	The pre-hearing review dealt with the Claimant’s home-made claim form which did not necessarily reveal race discrimination.  So her Counsel submitted to the Chairman in writing an analysis by date of the acts alleged to constitute discrimination.  There were 17.  The Chairman, in his judgment, divided them as I have described above.  It is not disputed that the relevant date is 25 November 2004, that is three months before the claim form was presented in February 2005.  The Chairman decided that 12 of the 17 claims so organised were out of time.  He said this:
“36.	I am satisfied that the first category of acts of less favourable treatment (paragraph 15 above) constitute by themselves a continuing act, but one that came to an end in August 2004.
37.	I am also satisfied that the second category of less favourable treatment (paragraph 16 above) also constitutes a continuing act. I am prepared to find that those all constituted part of the disciplinary process and to that extent constituted an ongoing situation. However, that situation ended on 11 October 2004 when the disciplinary charges against the Claimant were dismissed.
38.	I am also satisfied that, in themselves, the third category (paragraph 17 above) and final category (paragraph 18 above) were continuing acts and in each case extending over a period coming to an end on or after 25 November 2004.
39.	The difficulty I have is in finding that the first and second categories form part of a whole with the third and/or final categories. The disciplinary proceedings terminated on 11 October 2004 -there was not an ongoing situation thereafter and no policy, practice or regime under which the subsequent events can be said to be part of the same act as the prior events”.

13.	He then decided not to exercise his discretion to extend time in order to validate the 12 claims, as to which he said this:
“41. 	Turning to the question as to whether it would be just and equitable to consider those complaints:
41.1	I noted that the Claimant will be able to adduce evidence of the out of time complaints whether or not J exercise my discretion to allow those complaints to be considered.
41.2 	I considered the nature of the complaints themselves.
41.3 	I noted the lack of any explanation for the non-presentation within time.
41.4 	I also noted that the Respondent does accept that there were some procedural shortcomings in the disciplinary process.
42.	Weighing these and all the other circumstances and considering the balance of prejudice, I conclude that it would not be just and equitable for the out of time complaints to be considered”.

The Claimant’s case
14.	Mr Afeeva guilelessly asserted that the law on continuing acts under s68 of the Race Relations Act is trite.  He referred to the judgment of the Court of Appeal in Hendricks v Commissioner for the Police Metropolis [2003] IRLR 96, indicating that there should be an ongoing situation and if there is, that is sufficient to establish a continuing act for the purposes of the statute.  The Chairman had failed to find that there was a nexus between category 1 and category 2 matters and between category 2 and category 3 matters.  In either of those situations, there would therefore have been a continuing act extending “where you draw the line from the very first to the very last or from some intermediate stage within the categorisation”.  It cannot have been the intention of the legislation to allow a single Respondent to conduct acts of discrimination of different forms which are all self-contained and therefore cannot be run together.  There is no need for the acts alleged to be of the same character.

15.	In so far as the Court of Appeal in Robertson v Bexley Community Centre [2003] IRLR 434 indicated that what was necessary was some form of policy, that judgment should not be followed since it conflicted with the prior judgment of Hendricks.  It was made without consideration of the prior judgment which was binding upon it.  Further, it was contended that there is, in fact, a nexus. It was wrong to shut out the Claimant from the judgment seat at the trial of the acts which she alleged to be discriminatory at this stage for, as Lord Steyn had observed, it is very important for discrimination claims to be adjudicated (see Anyanwu v South Bank University [2001] IRLR 305, at paragraph 24, cited below).

16.	Turning to the second ground, whether it was just and equitable to extend time, it was submitted that this Chairman did not let the Claimant and all of us know what circumstances he had in mind when he declined to exercise his discretion in her favour.  

The Respondent’s case
17.	On behalf of the Respondent, it is submitted that the simple issue in this case is one of fact.  The issue under s68 is one of jurisdiction which precludes a Tribunal as a matter of law from hearing complaints unless they are made within time or unless the Tribunal exercises its discretion.  The time point was taken and thus it was appropriate in accordance with the Tribunal Regulations and Rules for there to be a PHR on this issue.  The judgment was not irrational, for the categorisation by date was a matter which emerged from the rationalisation of these allegations made by the Claimant’s own Counsel. 

18.	There is a clear cut-off between each of the events which are self-contained.  Mr Sheldon submitted that it was not necessary for me to decide the issue as to whether or not Robertson was consistent with the judgment of the Court of Appeal in Hendricks since the Chairman had decided, on the basis of the language used in Hendricks, that there was no ongoing act.  

19.	As to the exercise of discretion, the Chairman has given an account of the matters to which he paid attention. No explanation was forthcoming by the Claimant as to why she had not put in the claim within time.  The balance of prejudice means that on the one hand, the Chairman has considered that the Claimant would be shut out entirely from a vindication of her claims before a Tribunal and on the other, that the Respondent (if the claims were allowed to proceed) would be facing out of time claims.  

The legal principles
20.	The legal principles to be applied in this case appear to me to be as follow.  A Tribunal - and here a Tribunal Chairman – has extensive powers of case management under the modern Employment Tribunal regime.  There are express powers to strike out and an express power to deal with time points.  Nevertheless, where issues are reasonably arguable and are not obviously out of time, then as Lord Steyn held in Anyanwu, they must be tried. He expressed some irritation that he was dealing with a preliminary question for the fourth time and, in due course, this matter did go back to be tried over 49 days (Mr Afeeva tells me) where all of the claims were dismissed and appeals to the EAT failed.  

21.	It must be borne in mind, however, that Lord Steyn was dealing with an abuse of process issue and that the situation there must be qualified by the express rule of the Tribunal which allows for jurisdiction points to be taken at a Pre-Hearing Review.  

22.	I regard the law as set out in Hendricks as being the applicable law here and, in particular, the judgment of Mummery LJ (with whom May and Judge LJJ agreed) when he said as follows:
“48		...She is, in my view, entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'. I regard this as a legally more precise way of characterising her case than the use of expressions such as 'institutionalised racism', 'a prevailing way of life', a 'generalised policy of discrimination', or 'climate’ or 'culture' of unlawful discrimination.
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”.

23.	What Mummery LJ did was to expand the cases where discrimination might be found beyond those where a policy could be identified. The extension is most useful where the acts said to be continuing are different in nature, but they constitute a continuing state of affairs in which discrimination occurs. A policy is a strong example of a state of affairs, but the state can exist without it. Just as a policy can be abrogated, so a state of affairs can change or come to an end.

24.	Whether there is a continuing act is a question of fact.  The rules on continuing acts were set out in my judgment in Coutts v Cure [2005] ICR 1098 at paragraphs 28-31 citing the earlier judgment of the Court of Appeal in Cast v Croydon.  A Tribunal or Appeal Tribunal would be slow to make a finding that the Court of Appeal had made a judgment which was wrong because it did not know of another Court of Appeal judgment.  A decision on a question of time is one of fact: see Robertson at paragraph 25 per Auld LJ:

“It is also of importance to note that the time limits are exercised strictly in employment and industrial cases.  When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion.  Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.  It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view.  As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the tribunal below plainly wrong in this respect”.
I note that Auld LJ also pays attention to another authority of the Court of Appeal but it appears to be a judgment of a two judge Court refusing permission to appeal to a litigant in person.  Thus, it seems to me that the principle embodied, as it happens in that earlier case, is embodied in the words of Auld LJ speaking and giving the only judgment of the Court of Appeal in the Robertson case.

25.	Finally, appeals alleging perversity are rarely successful and the threshold is high.  There must be an overwhelming case on the facts shown for such an appeal to succeed (see Yeboah v Crofton [2002] IRLR 654 CA). 

Conclusions
26.	I prefer the argument of the Respondent and have decided that the appeal should be dismissed.  First, the issue before me is whether there was an error of law.  The decision by the Tribunal Chairman was one of fact.  He had to decide whether, as a matter of fact, the allegations were made in time, or whether they were in time because they were a series of acts constituting a continuing act, as it is generally known.  The Chairman was right to divide the period up into four categories.  

27.	The written submission made by Mr Afeeva, his Skeleton Argument and the Notice of Appeal all show that as a matter of syntax and of substance the claims are correctly divided into four logical categories based on date.  It was open to the Tribunal to consider that one leads into another, but that was not the finding that the Tribunal made here.  Such a finding is one of fact.  .  

28.	The correct legal test was applied. The Chairman cites the language of Hendricks three times.  First, he cites the case itself including the passage relied on by Mr Afeeva.  Secondly, in his treatment in paragraph 37 of category 2, he uses the phrase “ongoing situation.” Thirdly, it appears again in what both Counsel argue is the critical paragraph and with which I agree.  

29.	That is a plain finding consistent with the language of Hendricks.  It also is consistent with the language of Robertson, for there the words “no policy, practice or regime” also appear.  I reject the contention that, as Mr Afeeva put it, Robertson was on the Chairman’s agenda and we do not know how it affected him.  It was “on his agenda” because it was submitted in writing to him that Robertson was not the correct test and on the other hand, on behalf of the Respondent, that it was.  In either case, Owusu [1995] IRLR 574 was cited, which is the language of practice, procedure or regime.  I am satisfied that a firm finding of fact which satisfies the test in Hendricks was made by the Chairman in paragraph 39 and since this is the critical section of his judgment, there can be no ground for contending that he made an error of law in so doing. 

30.	I put to Mr Afeeva that there might be support for his nexus argument from paragraphs 3 and 4 of the judgment (see the words “as a consequence”) but in his response, for a tactical reason, he declined to take the point.  I note that in both Robertson and Hendricks the (as it happens) different conclusions reached by the respective Employment Tribunals were upheld when the Court of Appeal reversed the EAT.  

31.	That is the short answer to the first point.  I have fully in mind Lord Steyn’s imprecation that race discrimination claims, when properly made, should be adjudicated.  But I also bear in mind the clear jurisdictional requirements of the regulations and when a point is taken properly by a respondent as to time, a Pre-Hearing Review by the Chairman alone is usually the appropriate way of dealing with it.  In any event, in this case, there can be no principled objection nor an objection on grounds of law that this preliminary point was taken at the Pre-Hearing Review.  

32.	I then turn to the point about discretion.  What is unusual about this case, in my experience, is that there has been no explanation for the failure to present the claim form within the time.  All the cases with which I am familiar invoke some form of excuse, but not here; and that obviously was a matter which weighed upon the Chairman when he declined to exercise his discretion.  He also noted, as is the case, that all of the 12 allegations which he ruled out are capable of emerging as evidential issues pursuant to the judgment of the EAT, Mummery J in Qureshi v Victoria University of Manchester [2001] ICR 863, cited with approval in Anya v University of Oxford & Another [2001] IRLR 377 CA.  

33.	The Chairman indicated that he considered the nature of each of the complaints including the fact that the Respondent acknowledged shortcomings in its process.  Shortcomings in a disciplinary process are not necessarily acts of discrimination.  The Chairman considered the balance of prejudice and I accept the submission made on behalf of the Respondent, which has not been answered by Mr Afeeva, that the balance of prejudice means weighing the effect of, on the one hand, stopping the case and on the other continuing it when many of the claims are out of time.  I have no difficulty in understanding what the Chairman meant when he expressed himself in that convenient shorthand.

34.	He mentions all the other circumstances; but I bear in mind how high the bar is on appeal to overturn a judgment of an Employment Tribunal Chairman when asked to exercise discretion to allow a point to be taken out of time.  In my judgment, the Claimant has not shown an error of law or the exercise of discretion so wrong in principle as to meet the relevant test set out in Robertson.

35.	In those circumstances, it is not necessary for me to decide the issue as to whether Robertson was decided without reference to binding authority. The standard to be met is that in Malingios v George Frank Textiles Ltd [1975] 2 WLR 555 in the judgment of Lord Denning MR at 565B-C and D-F.  It must be recalled that Mummery LJ in Hendricks was not over-ruling cases where policy, practice or regime had been used, but giving those a different treatment suggesting that they were examples, all of which would have to contribute to an ongoing situation.  It is not clear to me that had the Court of Appeal in Robertson been shown a copy of the judgment in Hendricks which preceeded it by five months, it would have made a different decision.  

36.	In any event, according to the diligent researches of both Counsel before me, Robertson has not been cited in any subsequent case whereas Hendricks has in many.  I am thus fortified in the view which I have taken which is that Hendricks represents the correct law.  In this case, the Chairman was not seduced by Robertson even if it does express language slightly different from that in Hendricks and, in any event, made the firm conclusion of fact which I have described from paragraph 39 of his judgment.  

37.	I would very much like to thank both Counsel for the help which they have given to me in deciding this case today.  The appeal is dismissed. 

Directions [not part of Judgment]
38.	It will be category B, reserved to me, if practicable, otherwise to another judge.  It will be two hours.  I will lift the stay.  There will be a R3(10) hearing on the grievance point and again, it will come in front of me, if practicable.  

39.	Dr Lyfer is still employed.  The relationship is still ongoing.  I do not know what state it is in at the moment. She has one case going back to the Employment Tribunal – one claim only.  She may have five going back depending on the outcome of all of this.  The case is therefore back in the ET at some stage.  I do not know whether the parties have thought about conciliation.  But we are very keen, where there is protracted litigation and there is a subsisting employment, to see if conciliation is a way of getting the parties back together and working together.  So I direct that the parties consider conciliation and that this matter be dealt with by the Conciliation Officer in the Tribunal rather than our officer here.  I would like a report, please, in 28 days indicating what steps have been taken and if you have not thought about this before, then bear in mind that conciliation is a process where people have to have their minds open and to be prepared to change their positions, if necessary, in order to reach an outcome which does not involve further litigation. It may well be a compromise, but at least it will be in the hands of the people who know most about the case.