Littlewoods Organisation Plc v Traynor [1992] UKEAT 658_90_1811

EAT
Littlewoods Organisation Plc v Traynor
[1992] UKEAT 658_90_1811 · 1992-11-18

LORD COULSFIELD: This is an appeal against a decision of an Industrial Tribunal sitting at Liverpool, under the chairmanship of Mr A M Coventry, dated 7th September 1990, holding, on a preliminary issue, that there was jurisdiction to deal with a complaint of racial discrimination made by the present Respondent.

The Respondent was employed by the Appellants from 3rd August 1987 until 19th January 1990. During his employment certain incidents of racial abuse took place. It is not necessary to go into the details of these incidents for the present purpose; they involved remarks made by a supervisor. The only point that we need to make is that the incidents themselves took place in August 1989. These incidents gave rise to a grievance procedure which ultimately led to the writing of a letter by the Appellants to the Respondent dated 22nd September 1989. This letter included the following passage:
"Mr Irving explained that the purpose of the meeting was of a counselling nature. There have been significant changes since your letter of 10th August. (a)Mr Holmes, your previous supervisor, has moved to another position outside JM Centre. (b)The Company is currently in the process of appointing a new supervisor in Stationery Department. (c)The new supervisor will receive training in managing a multi-racial workforce and in improving morale and efficiency in the Stationery Department. (d)Your complaints have been discussed in detail with the relevant managers and investigated by the Equal Opportunities Unit."
The letter went on to suggest ways in which the parties might proceed and to express a hope that the problems which had arisen could be overcome.There was certain further correspondence after that letter, in the course of which the Respondent indicated, on the 20th November 1989, an intention to bring his employment to an end because of the racial discrimination. Ultimately, as we have said, the employment was terminated on the 19th January; the termination took the form of a voluntary redundancy.Thereafter the Respondent made an application to an Industrial Tribunal. This application went to a Preliminary Hearing and on the 3rd April 1990, the Industrial Tribunal held that the application was out of time, on the ground that more than 3 months had elapsed since the act complained of. The reasons for the decision of the Industrial Tribunal in that case make it clear, in our opinion, that the footing on which that Tribunal dealt with the case was that the complaint made was restricted to acts taking place in August 1989. The reasons for the decision included the following passage:
"We take the view that the last act of discrimination was the shouted remark of Mr Holmes to one of his colleagues in August 1989. We are satisfied that such a remark was a detriment to the applicant in that it was intended to hurt him because Mr Holmes was aware there was a black employee present when he made the remark and it is reasonable to conclude that he knew that employee would inform the applicant of what had been said.
Accordingly, the time limit for the presentation of this complaint would expire some time in mid-November 1989 and as the application was not presented until 19 January 1990 it is clearly out of time."Immediately after the decision on that complaint the Respondent raised a fresh application, which is the application with which we are presently concerned.In the argument before us the point was taken that it was not appropriate for a fresh application to be made and for a second industrial tribunal, in effect, to review a decision which had been taken by a previous industrial tribunal. However, that point was, in our view, not taken before the Industrial Tribunal in the present case. It is true that in the Notice of Appearance lodged on behalf of the present Appellant in these proceedings there is reference to the previous industrial tribunal decision but that reference is made by further reference to a letter dated 30th April, submitted to the Industrial Tribunal on behalf of the present Respondent, and to the passage referred to makes it clear that it was only concerned with the particular complaints related to August 1989. There is nothing in the statement of Reasons given by the Industrial Tribunal in the case before us to indicate that there was any argument addressed to them to the effect that the previous decision foreclosed any issue raised before them. In these circumstances we do not think that this is a point which the Appellants can take in the present proceedings.In the reasons for the decision against which the present appeal is made, the Industrial Tribunal refer to Section 68 of the 1976 Act which defines the period within which a complaint must be made. They refer to the case of Barclays Bank Ltd v. Kapur & Others [1991] ICR 208 . In the statement of facts they refer to the incidents which had originally caused the problem and to the letter which we have previously quoted. The findings of the Industrial Tribunal continue:
"In the early part of 1990, the applicant was away from work through illness. On his return he complained that the course of action detailed in the above-mentioned letter of 22 November 1989 had not yet been fully implemented and that, in consequence, the `fresh start' which he had been promised had not, in fact, materialised. Working conditions and attitudes remained, he says, the same.
In consequence, Mr Traynor once again spoke to Mr Wilkinson, complaining particularly that items (b) and (c) set out in paragraph 2 of the said letter of 22 November 1989 had not been implemented. A conclusion satisfactory to the applicant not being achieved, his employment with the respondent came to an end on Friday, 19 January 1990."The Industrial Tribunal found some difficulty in reaching a conclusion and took time to consider the matter but eventually reached a view, which they expressed as follows:
"we are now satisfied for this purpose that, at the date of termination of the applicant's employment the items (b) and (c) referred to in paragraph 2 of the above-mentioned letter of 22 November 1989 had, in fact, not yet been implemented, or fully implemented. We do not advance that view on the basis of criticism of the respondent and accept that the respondent may very well have made some effort to put in hand the measures required. However the process of rectifying difficulties of the kind encountered in this case is by no means quickly or easily achieved."
They went on, however, to say:
"However, the purpose of the relevant measures clearly being to put right a situation which by implication at least, was acknowledged as not satisfactory in relation to the provisions of the 1976 Act, it must in our view follow, that if the remedial measures were not implemented, or not fully implemented by January, then there must be a continuing, or residual, cause for complaint right up to the time when the applicant left the employment."
The argument for the Appellants before us was advanced by reference to the provisions of Section 68 of the 1976 Act. Section 68(1) defines the period of 3 months following an act complained of within which the complaint must be made. Subsection (7) provides:
"For the purposes of this section - (a)when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and (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;
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 if it was to be done."Reference was made to the decisions in Amies v. Inner London Education Authority [1977] ICR 308 and Calder v. James Finlay Corporation Ltd [1989] IRLR 51 and Sougrin v. Haringay Health Authority [1992] IRLR 416 as well as to the case of Barclays Bank v. Kapur previously cited.The Appellants' submission to us was that the Industrial Tribunal must find that there had been an act continuing up to the termination of his employment, in order to justify their decision. They had failed to make it clear what was the act upon which they were basing their decision. In a case such as this, where there was an omission, a person should, in terms of the proviso to subsection (7), be taken to decide upon an omission when he did an act inconsistent with it or, otherwise, after the lapse of a reasonable time. There were however, no findings in relation to the lapse of a reasonable time and in any event it was not possible for the Industrial Tribunal to take the view that anything unreasonable had occurred in relation to the training and appointment of a supervisor. In order to establish a continuing act, in these circumstances, that either there must be an inconsistent act or the expiry of the reasonable period but the Industrial Tribunal had made no criticism of the employers who might well have put these matters in hand. In this case the only act which could be pointed to was either the original set of acts in August 1989 or what had occurred in November.In our view it is not necessary to cite the cases referred to in any detail. It is clear from all of them that the problem which an industrial tribunal has to address, in circumstances such as this, is how to distinguish between a single act, which may have consequences extending over a period of time, on the one hand, and a continuing act, on the other. In Barclays Bank v. Kapur Lord Griffiths, in dealing with the case of employers who had kept in operation a system whereby coloured employees were less favourably treated in relation to pension than white employees, expressed the position by saying that the correct approach was to classify the pension provisions as a continuing act lasting throughout the period of employment, and therefore as falling within subsection 7(b) of Section 68. Lord Griffiths then continued:
"The matter can be further tested by taking the case of an employer who before the Act was passed paid lower wages to his coloured employees than to his white employees. Once the Act came into force the employer would be guilty of racial discrimination if he did not pay the same wages to both coloured and white employees. If he continued to pay lower wages to the coloured employees it would be a continuing act lasting throughout the period of a coloured employee's employment within the meaning of subsection (7)(b). A man works not only for his current wage but also for his pension and to require him to work on less favourable terms as to pension is as much a continuing act as to require him to work for lower current wages."
On the other hand, in the case of Sougrin v. Haringay Health Authority the situation was that the employer decided, upon a particular occasion, not to grant a regrading to a coloured employee with the result that thereafter the coloured employee continued to receive lower wages than she would have done if she had been regraded; in that case the act complained of was an act which took place at the time of the refusal of the regrading. The decision whether there is a single act having continuing consequences or a continuing act is one that must involve consideration of the particular circumstances. It was submitted to us that the distinction between cases such as Kapur and the present case was that in Kapur there was a continuing omission to pay a proper wage during every week in which the employment continued, whereas there was no such continuing act in the present case. In our view, however, the situation in the present case can properly be described in the same manner as Lord Griffiths expressed the situation in Kapur . So long as the remedial measures which had been agreed on in November 1989 were not actually taken, a situation involving racial discrimination continued and allowing that situation to continue amounted to a continuing act. Of course, at this stage in the proceedings, the Industrial Tribunal have not decided that the employers' actions in allowing the situation to continue were, in fact, racially discriminatory or gave a good ground for complaint. We have to proceed upon the assumption that the situation which continued to prevail after November 1989 and up to the date on which the Respondent's employment was terminated may be capable of amounting to a continuation of discrimination. On that footing, we see nothing wrong with the decision of the Industrial Tribunal.In our view, therefore, the Industrial Tribunal did not misdirect itself on the law nor reach a conclusion which was not open to it and we would therefore refuse this appeal.