Henry v London Borough of Newham [2004] EWCA Civ 377

Case No A1/2003/1903[2004] EWCA Civ 377
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE BRITLES)
Venue Royal Courts of JusticeDate Friday, 5 March 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE PILL
LORD JUSTICE LATHAM
MR JUSTICE EADY
Between
KEITH HENRYAppellant-v-
Between
LONDON BOROUGH OF NEWHAMRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR MOHINDERPAL SETHI (instructed by Webster Dixon, 21 Fetter Lane, London EC4 1AW) appeared for AppellantMR ANDREW THOMPSON (instructed by London Borough of Newham, Legal Services, Newham Town Hall, East Ham, London E6 2RR) appeared for Respondent
J U D G M E N T

LORD JUSTICE PILL:

This

[1]is an appeal against a decision of the Employment Appeal Tribunal, HHJ Birtles presiding, on 29th July 2003, whereby the Tribunal dismissed an appeal from a decision of an Employment Tribunal sitting at Stratford on 28th August 2002. Keith Henry ("the appellant"), by an originating application dated 4th July 2001, had made allegations of racial discrimination against his employers, the London Borough of Newham ("the respondents"). The Employment Tribunal dismissed those complaints.[2]In its extended reasons, the Employment Tribunal set out the background to the dispute. The appellant commenced employment with the respondents as a part-time library assistant in March 1992. He worked nine hours a week, principally on Sundays but also on Tuesday evenings. The Tribunal set out the complaints which the appellant made against his employers:
"(1) He was monitored for his time-keeping for a continuous period from November 1997 to September 2000 without good reason and when others with similar records as regards time-keeping were not subjected to this supervision. (2) His formal complaint against Ms Ahadi was not submitted to the Respondent's official procedures for the elimination of harassment and discrimination. (3) The respondent unjustifiably attempted to coerce him to attend the OHS [Occupational Health Service] and threatened disciplinary action if he did not do so. (4) The Respondent endeavoured to prevent him from using biblical and other quotations in his correspondence, which was a harmless and inoffensive practice rooted in his religious and cultural background. (5) The Respondent unjustifiably subjected him to a disciplinary investigation, followed by a stage 2 hearing, which in part arose from his refusal to attend OHS and his use of quotations. This could also be cited as an instance of victimisation. (6) Payment of the Applicant's wages was changed from weekly to monthly without informing him, and Mrs Mwangura endeavoured to conceal that he had not been informed by backdating a letter. Furthermore there was institutional racism endemic within the Respondent which was the prime cause of the discriminatory treatment of the Applicant outlined above, which had generally infected the management and was responsible for the way in which it dealt with the Applicant and responded to his grievances."
[3]Mr Mohinderpal Sethi, who appears for the appellant, has sensibly and realistically, in my view, confined his submissions on behalf of the appellant to three points. They plainly are the points which merit the consideration of this court, leave having been granted, following an oral hearing, by Mummery LJ.[4]One of those relates to a complaint not listed by the Employment Tribunal, though accepted as a point on which the appellant addressed them. It is suggested that the Tribunal should at the commencement of the hearing have clarified precisely what the complaints were. That is not always an easy task, especially when a litigant in person is involved, and indeed could involve a suggestion that the litigant was having undue pressure put upon him to confine himself or herself to certain points.[5]The Tribunal dealt with the facts, not in a chronological way, but by setting out the headings under which complaints had been made. They found that course convenient and I do not dissent from that. However, I do, very briefly, summarise the course of events. Issues arose between the appellant and his employers. Time-keeping was a persisting point of dispute between them. In the year 2000 the appellant complained that he had been discriminated against by Ms Ahadi and he made a formal complaint about that. A report was prepared by Miss Dowling. The appellant objected to the manner in which his complaint had been dealt with, and Mr McMaster conducted a further inquiry. Miss Hughes became involved and there was a complaint against her and a counter-complaint by her.[6]Findings of fact are made under the first heading, "Time Keeping and Monitoring". The second complaint is against Ms Ahadi and Miss Dowling's investigation. Miss Dowling concluded that investigation by writing a report in which she stated that she had reached the conclusion that there was no evidence to substantiate the allegations made against Ms Ahadi. The next heading is, "Attendance at the OHS". Dealing with that, the Tribunal found that circumstances had not arisen which entitled the respondents to direct him to the OHS. Instructions were given about the use of quotations from the Bible which were considered offensive in an employment context.[7]In the course of Mr McMaster's investigation which followed, the Tribunal found the tone of the appellant's correspondence "increasingly included hostile and abusive allegations". Mr McMaster investigated allegations against the appellant of unacceptable behaviour at work; failure to follow reasonable management instructions; unwillingness to be managed and failure to attend appointments with OHS.[8]In his written report of May 2001, Mr McMaster found that there was evidence to support three of the allegations: failure to follow reasonable management instructions; unwillingness to be managed, and failure to attend OHS appointments, but insufficient evidence to support the charge of unacceptable behaviour at work. What the respondents knew at a stage 2 hearing was recommended to be arranged.[9]Matters did not proceed further immediately. The appellant had informed Mr McMaster that he would be unable to attend a meeting, which had been fixed for 10th July, saying he would be out of the country on urgent business. It was at that time (4th July) that the originating application was issued.[10]The Tribunal referred to changes which were made towards the end of the year 2000: to changes in the system of pay and to events following the presentation of the application, though noting, correctly as Mr Sethi accepts, that such matters cannot be considered by the Tribunal, save insofar as they provide material from which inferences can properly be drawn about the conduct of the respondents prior to 4th July.[11]Following that date, there had been an application for compassionate leave, which formed the subject of one of the complaints not now pursued. The stage 2 hearing, which had been re-arranged for 11th September 2001, took place in the absence of the appellant, who did not attend. Some allegations were upheld and a first written warning issued. The appellant appealed against that and the appeal was dismissed.[12]There was thus a series of problems which occurred over a fairly prolonged period. The Tribunal set out the relevant statutory provisions: section 1(1), section 2(1) and section 4(2) of the Race Relations Act 1976. They referred to section 68(1), which provides that an Employment Tribunal shall not consider a relevant complaint unless it is presented to the Tribunal before the end of the period of three months, beginning when the act complained of was done. They referred to section 68(7)(b), which provides that for the purposes of the section "any act extending over a period shall be treated as done at the end of that period." They also referred to section 68(6), which provides that the Tribunal may consider a complaint which is out of time if, "in all the circumstances of the case, it considers that it is just and equitable to do so."[13]I have referred briefly to the description of events by the Tribunal which they set out systematically and in detail. In paragraphs 30 to 39 of their extended reasons, they set out their conclusions upon each of them. They reject the charge of institutional racism, saying that the allegation was wholly unsupported by any evidence:
"Whether these incidents [that is the specific incidents to which I have referred] involved discrimination against Mr Henry on racial grounds is a matter that will have to be examined individually in relation to each incident, but there are no grounds for concluding or even suspecting, that there was a culture or policy of racial discrimination within the Respondent's organisation, or within the Library or Leisure Services departments. 31. The incidents which have been cited by Mr Henry can be said to be interlinked in the sense that one event often had a causal or connection with another. Thus, for example, the decision by Ms Ahadi in April 2000 to impose monitoring provoked by Mr Henry to make a formal complaint against Miss Ahadi, which he complains was not investigated under the Respondent's Discrimination and Harassment procedures. However, the Tribunal do not consider that there was any campaign directed against Mr Henry or that the various incidents can be regarded as part of a series of acts deliberately targeted at Mr Henry."
[14]In paragraph 32 the Tribunal deal with the monitoring allegation and make findings of fact to which I will refer. However, they would not consider it on the ground that it was out of time, stating:
"... the Tribunal is quite unable to find that it would be just and equitable to consider this part of Mr Henry's complaint."
In paragraph 33 they deal with the allegation that Mr Rice failed to deal with Mr Henry's formal complaint against Ms Ahadi in the appropriate manner. They found that too to be out of time, and that it was not just and equitable to consider it. However, they went on to state their opinion that it would be:
"... well nigh impossible to find that there had been unlawful discrimination within the meaning of the Act."
Paragraph 34 deals with the OHS complaint. The Tribunal found that the respondents were wrong in attempting to insist that employees could be directed to attend the OHS, but they held in terms that no discrimination in relation to the appellant was involved.[15]In paragraph 35 the use of biblical quotations was considered. They made no finding of fact as to whether the respondents were entitled to prevent that conduct, but held in terms that the action of the respondents was not promoted on racial grounds:
"... it was endeavouring to stop a practice which was upsetting some of its staff."
[16]Paragraph 36 dealt with Mr McMaster's investigation into Mr Henry's conduct which had been initiated by Mr Rice. Following what the Tribunal thought to be a lengthy period in which the appellant appeared in resolute conflict with the management of the Library and Leisure Services, characterised by vituperative correspondence, a refusal to co-operate with internal enquiries, which he himself had caused to be commenced, and a refusal to accept or follow instructions from management, the Tribunal held that no racial discrimination was involved in the conduct of the respondents. The investigation was directed by Mr Rice because he considered that the appellant may have been guilty of misconduct.[17]Paragraph 37 included a finding that Mr McMaster's conclusions:
"... represented his genuine belief, and that he would have made the same recommendation against any employee against whom complaints based on similar evidence had been made. There was no racial factor involved."
[18]The topic of wages payments was dealt with at paragraph 38, and the Tribunal held that the appellant:
"... was treated in the same way as everyone else ... There are no grounds to support a complaint of discrimination."
Equally, with regard to subsequent events, the Tribunal held that there was nothing in the conduct of the stage 2 hearing which gave rise to adverse inferences of discriminatory attitudes on the part of the respondents which might influence conclusions about the appellant's complaints concerning events before 4th July.[19]It has been necessary to set out the findings on the entire range of issues, some of which are not directly challenged because of the submissions which are made. The first ground is on the basis that the Tribunal has applied a wrong test in relation to section 68(7)(b).[20]Mr Sethi has been instructed only very recently, so that the court has not had the advantage of a skeleton argument, but Mr Sethi has made his submissions with the clarity and persuasiveness to be expected. He submits that in paragraphs 30 and 31 of the extended reasons the Tribunal have fallen into error:(i) they have failed to take into account the two topics which they held to be out of time in deciding whether there was a continuing course of conduct;(ii) they have not complied with the law in relation to continuous conduct because they have failed to follow the guidance given upon that question in the recent decision of this court in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96.[21]That was a case involving a female police constable who was black. She presented a Tribunal application complaining that through most of her 11-year service she had been subjected to race and sex discrimination and to harassment. Her allegations included almost 100 specific allegations of discrimination, involving 50 or more officers. The Employment Tribunal permitted the consideration of allegations involving conduct years before the application was presented to the Tribunal. That was rejected by the Employment Appeal Tribunal, who held that there was no justification for inferring "such a generalised rule, practice, regime or climate" as had been alleged. It was held in this court that the Employment Appeal Tribunal had erred, first, in finding that the allegations made by the applicant did not justify inferring a wide policy, rule, practice, regime or climate of discrimination and that there could be no act extending over a period.[22]Giving the leading judgment, Mummery LJ stated at paragraph 48:
"On the evidential material before it, the tribunal was entitled to make a preliminary decision that it has jurisdiction to consider the allegations of discrimination made by Miss Hendricks... 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."
Paragraph 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..."
Reference was made to earlier cases, and Mummery LJ continued at paragraph 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... 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 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]Mr Sethi submits that the Employment Tribunal, which did not have the benefit of that guidance, having decided the case prior to its delivery, were in breach of the law as now revealed. They failed to look at matters cumulatively; they denied themselves the opportunity of considering the merits of each of the allegations alongside the other allegations, with an inevitable weakening of the appellant's case; they were wrong in looking in paragraphs 30 and 31 to "institutional racism" and to a "campaign", rather than approaching the matter in the way indicated by Mummery LJ.[24]In reaching my conclusions on this issue, I bear in mind that the further allegation, which relates to the conduct of Mr Burbage, dealt with in the second of Mr Sethi's points, should also be borne in mind in this context.[25]This case is very different on its facts from Hendricks. Moreover, the matter fell for consideration by the Employment Tribunal at a different stage in the two cases. In Hendricks it was at a preliminary stage, where the question was whether the applicant should be permitted to produce evidence to satisfy the burden upon her. The present case falls for consideration by this court upon a full consideration of the evidence by the Employment Tribunal.[26]In my judgment, no error of law by the Employment Tribunal is revealed upon a consideration of its decision as a whole. The mischief which Mummery LJ had in mind in Hendricks was of confining the approach to section 68(7)(b) to a consideration of labels, such as "institutional racism" and failing to look at the specific evidence in the case, and specific allegations in the case in a common sense way, in deciding whether the conduct amounts to "an act extending over a period" as distinct from a succession of unconnected or isolated specific acts.[27]I readily accept that in a particular case there may be continuing conduct without there necessarily being a racialist policy, or regime, or institutional racism. In my judgment there is no risk that the Employment Tribunal fell into that trap in this case. There had been a series of problems between the appellant and his employers. The Employment Tribunal examined the substance of the complaints. They considered the specific incidents. They made clear and firm findings of fact on them. In my judgment, they were fully entitled to conclude that the conduct could not be regarded as an act extending over a period within the meaning of that expression in section 68(7)(b). Each of the specific findings was, in the event, adverse to the appellant.[28]In paragraph 31, when the Tribunal accepted that the incidents are "interlinked in the sense that one event often had a causal or connection with another", they were, as the example they gave illustrates, no more than stating the obvious. There was a factual connection of the kind indicated. But, in my judgment, that did not involve a failure, nor was it evidence of a failure, that they had failed to approach the conduct and apply the test in the correct manner. This was a not a case, in my judgment, where on the evidence given and the finding of facts made, it could be held that the employers were responsible for a continuing state of affairs such as that which had been alleged to exist in Hendricks.[29]I should add that Mr Sethi has referred to the fact -- pursued earlier by the appellant in grounds of his own -- that there was an issue as to whether certain paragraphs of his written statement to the Tribunal should be read. The Chairman has stated in writing that even though the paragraphs were not allowed to be read, that they were borne in mind by the Tribunal. I cannot hold that any legal error arises from the course of conduct which was followed.[30]The second point is an allegation that Mr Burbage, who is the respondents' Chief Executive, failed to investigate a complaint which had been made to him. It is right to say that this allegation was included in the written statement which the appellant provided as evidence for the Tribunal. It should, however, be added that as a complaint -- as distinct from a description of events and a narrative -- the allegation was not made in the originating application. The best expression of it as a complaint appears at page 16 of the statement of evidence, where it is stated:
"Mr Burbage who oversees the whistleblowing procedure refused to investigate my complaint (18 April and 3 May) even though I wrote to him on two separate occasions."
We have been referred to those letters. In that of 4th April:
"I have been advised by my solicitor that I should make a complaint against the Director of Leisure Services, Mr Norman Turner, using the whistle-blowing procedure. I would like you to investigate matters related to me, which as far as I can see are tainted with discriminations."
The particulars are then given in some detail.[31]Mr Dave Burbage replied:
"I refer to your letter of 4th April 2001 regarding a complaint under the whistle-blowing procedures. As I understand the position you are currently the subject of a disciplinary process."
Another matter is dealt with, and the letter concludes:
"If you have grievance you want to pursue I suggest you follow the Council's agreed grievance procedure."
On 23rd April the appellant wrote:
"My solicitor (foresaw this situation and) instructed me (before his departure) to say the following, if the Council refused to hear my charges. This is not meant to be definitive, but to highlight the crux of the issue: I am complaining under the whistle-blowing procedures because I believe the Council (ie senior management per se and in particular Norman Turner) is acting unlawfully by discriminating against me, and ultimately the action(s) taken by Newham Council is leading to my constructive dismissal. There are also other matters related to this case which can be considered unlawful ... Hence my complaint under the whistle-blowing procedure. Furthermore in the light of this situation I request any action taken against me to be suspended until the whistle-blowing procedure is over."
Mr Burbage replied on 3rd May:
"Unfortunately the contents of your letter does not add further to the information provided in your original letter and under the circumstances my response remains as set out in my letter dated 18th April."
[32]I cannot accept the allegation that Mr Burbage's failure to take other acts, and the way which it was considered, or not considered, by the Employment Tribunal, amounts to an error of law on their part in the circumstances of this case. He is the Chief Executive of a very large organisation. It is submitted that he was racially discriminatory in failing to initiate a further investigation in April or May 2001. There had been investigations conducted within the respondent's procedures and, indeed, there was an investigation in progress, the points raised being under consideration by Mr McMaster in the manner described.[33]In my judgment, Mr Burbage acted reasonably in the stance he took in the circumstances. In my view, the submission that in the context of this case, and against the background which has been set out, a case of racial discrimination is made out on the basis of the conduct of the Chief Executive is wholly unrealistic. I would agree with the finding of the Employment Appeal Tribunal that the allegation was impliedly rejected. The existence of the letter to Mr Burbage was mentioned by the Employment Tribunal and, in the context of their findings, it is clear what their finding would have been. But beyond that, for the reasons I have given, this, in my judgment, is not a basis for an attack upon the reasoning of the Tribunal having regard to the evidence as a whole.[34]The third point raised is in relation to the monitoring section of the decision of the Employment Tribunal. This is an allegation that the findings of fact of the Tribunal cannot be justified. First, Mr Sethi submits that they have failed to analyse the evidence as to the monitoring of the appellant's conduct, and, secondly, they have failed when drawing inferences to have regard to material which was before them.[35]Findings of fact are set out in paragraphs 8 and 9 of the extended reasons. Paragraph 8 stated:
"It appears to have been accepted by all present that by the time of the meeting [that was on 28th March 1998] the monitoring period was over."
The allegation had been that the appellant was monitored continuously in relation to time-keeping from November 1997 to March 2000. But, concluded the Tribunal, at paragraph 9, "plainly this was not so". Paragraph 10 deals with a second period of monitoring which began in March 2000, and the appellant was told, the Tribunal found, that his time-keeping and signing-in would be monitored for the next six months.[36]In their conclusions on this issue, they accept that there was monitoring for three months in about November 1997 and for six months in April 2000. They state that the appellant, "in terms admits that the second period of monitoring ended in September 2000." It is right to say that the appellant has throughout not accepted that finding of fact by the Tribunal. However, there was evidence from Miss Hughes that monitoring had ended, as counsel has told us.[37]The submission goes on to claim that because the findings of fact are unsound, then the reliance then placed upon the Tribunal in their reasoning, and in their conclusion that there was no racial discrimination, fails to that extent. What is relied on are two attendance notes, which appear in the bundle. Mr Sethi refers first to that at page 162, which is a note of a meeting on 7th December 2000 attended by representatives of the respondents. The question was asked about the monitoring period:
"Q. Could you clarify for me when you believe the current monitoring period started and when it was to finish? A. It was for six months from the date of the letter dated 30th March 2000. This should have now come to a close, but has been delayed because of this investigation."
Secondly, at page 135A there appears a note, taken by Mr McMaster, and agreed by Miss Hughes, of a meeting on 4th April 2001:
"We returned to the lateness issue. Miss Ahadi monitored Mr Henry's lateness and his performance improved. However, there was no end to the monitoring period because the meeting could not be held whilst Mr Henry's complaints were being investigated."
[38]Mr Sethi's first point, in relation to paragraph 9 of the extended reasons, in my judgment has no merit. There is nothing in those documents which casts doubt on the finding of fact that there was not continuous monitoring between November 1997 and March 2000. What Mr Sethi submits secondly is that both those notes indicate that on dates subsequent to September 2000 monitoring was or may have been continuing. Their findings of fact, Mr Sethi submitted, and he refers to the case of Anya v University of Oxford [2001] IRLR 377, cannot be justified when they have failed to take into account all the material before them.[39]Having considered those submissions, I am unable to conclude that on the evidence as a whole the Tribunal were not entitled to make the findings of fact they did on this issue. As I think Mr Sethi accepts, the notes are not clear in their effect. Plainly, no formal decision about monitoring was to be taken before the further meeting or meetings contemplated. However, the finding of the Tribunal is not necessarily inconsistent with the evidence of Miss Hughes, and the evidence that by September the attendance record had improved and, in practice, monitoring had been ended at that time. There is no reason on the material before the Tribunal why it should not have ended before a formal decision of the kind which appears to have been contemplated in documents was taken.[40]In any event, I would add that having regard to the careful findings of fact which the Tribunal have made on a range of issues, and having regard to their complete rejection on specific issues of any suggestion of racial discrimination, and having regard to the circumstances as a whole, even if there were to be merit in this point it cannot, in my judgment, amount to an error of law which requires that the whole matter be remitted to a differently constituted Employment Tribunal for a further investigation.[41]Mr Sethi has said all that could be said on behalf of the appellant, who clearly has a sense of grievance about the course events took during his part-time employment at the libraries. I am quite unable, however, to conclude that there has been an error of law by the Employment Tribunal which would entitle this court to remit the matter.[42]Mr Sethi rightly recognises that his attack has to be on the Employment Tribunal; I mention that because in his own grounds the appellant has had a good deal to say about the conduct and findings of the Employment Appeal Tribunal. The only comment I would make is that I do not see merit in the point, though I understand Mr Hardy's sense of annoyance about it, that the Employment Appeal Tribunal commenced their decision by referring not to a claim for racial discrimination but one for unfair dismissal. However, it is clear from the subsequent contents of their judgment that they did have in mind the correct allegations and considerations. I do not propose to comment in detail upon their findings, Mr Sethi rightly not having done so.[43]For the reasons I have given, I would dismiss this appeal.

LORD JUSTICE LATHAM: I agree. I just wish to add a few words of my own to support the reasons already given by my Lord, Pill LJ.

[45]As far as the complaint in relation to the way in which Mr Burbage dealt with the appellant's claims of discrimination against the fellow employees are concerned, it is undoubtedly unfortunate that the Employment Tribunal did not deal more fully with that aspect of the matter. But, as has been indicated in the judgment of Pill LJ, it is clear that what happened in relation to Mr Burbage could not create even the beginnings of a claim that he was acting in a discriminatory fashion. The letter which he wrote made it plain to the appellant that he was entitled to make use of the authority's grievance procedures. There was no evidence to suggest that in so indicating he was in any way disadvantaging this appellant.[46]In relation to the monitoring, again the findings of fact by the Tribunal clearly, as Pill LJ has said, establish that the appellant's complaints were unfounded. His main complaint was that he was under continuous monitoring from November 1997 to September 2000. That allegation was shown to be incorrect. That, it seems to me, was the significant finding. The fact that there is some uncertainty about what happened after September 2000 adds nothing to the case.[47]The more significant part of Mr Sethi's submissions were in fact directed to the way in which the Tribunal approached the issue under section 68(7)(b) of the Act, and whether it failed to apply the appropriate test. That has now been set out in the judgment of Mummery LJ in the Hendricks case, to which my Lord, Pill LJ, has already referred in paragraphs 51 and 52, in which Mummery LJ makes it clear that the Tribunal is not asked -- in answering the relevant question -- to seek to find a specific policy, rule, practice, scheme or regime which could be said to be racially discriminatory. It has a simple question to ask, which is whether there has been an act extending over a period, and it may of course be that if you could establish a policy, rule, practice, scheme or regime then that would assist in determining the answer to that question.[48]Mr Sethi is entirely correct to submit that that test is the one which was clearly appropriate to the circumstances of this case, where the appellant was making a number of discrete allegations in relation to his treatment by his employer.[49]The decision of Mummery LJ was not in fact available to the Tribunal at the hearing, it not having been decided until subsequently. But on a fair reading of the Tribunal's decision, it does not seem to me that the Tribunal fell into the error identified by Mummery LJ. It has to be remembered that Mummery LJ was concerned with a case where there was an application at a preliminary hearing for the complaints to be excluded on the grounds that they were out of time. So Mummery LJ's concern was to ensure that where there were facts which were capable, taken together, of amounting to a continuous act, then those should be subject to examination on their merits by the Tribunal to determine whether or not they could, in truth, be described as a continuing act.[50]In the present case, the Tribunal was not concerned with a preliminary issue of that sort. It was concerned with the merits. Its conclusions were clear: the only connection between the acts about which complaint was made was the historical connection, in the sense that the various acts followed one from the other. They could only amount to a relevant continuing act if they were connected by some evidence of discrimination. There was none. The Tribunal accordingly was correct to take the view that, there not being a continuing act for the purposes of that subsection, it was not required to approach the matter on the basis that this was a continuing act case.[51]For those reasons, which are essentially the same as those given by Pill LJ, I too would dismiss this appeal.[52]MR JUSTICE EADY: I agree with both judgments. (ORDER: Appeal dismissed. The respondent will have an order for costs. It will go against the appellant personally up to the date of the issue of the certificate with respect to this hearing (which is 3rd March inclusive). From 3rd March onwards there will be a section 11 order, with any question of contribution from the appellant during that period, that is 3rd March onwards, to be determined by the cost judge. Costs to be assessed and subject to detailed assessment.)

Cited in 1 later judgment