Chakraborty v Islington London Borough Council [1994] UKEAT 692_92_1605

EAT
Chakraborty v Islington London Borough Council
[1994] UKEAT 692_92_1605 · 1994-05-16
MR JUSTICE MORISON: This is an appeal against the unanimous decision of an Industrial Tribunal held at London North and which was entered in the Register on July 3 1992. The decision of the Tribunal was that Mr Chakraborty's application that he had been unlawfully discriminated against by his employers on the grounds of race, the London Borough of Islington, was presented out of time and the Tribunal had no jurisdiction to hear it. By Notice of Appeal which was received by the Employment Appeal Tribunal apparently on May 27 1993 Mr Chakraborty appeals against that decision on the grounds that the act of which he was complaining extended over a period and was to be treated as done at the end of the period and that his application was presented to the Industrial Tribunal within the period of three months from the "extended" date.In this judgement we shall refer to the parties as the Appellant and Respondent respectively. The brief facts relevant to this appeal are as follows. The Appellant is, and has since 1988, been employed by the Respondent as a Clerk of Works. On July 11 1991 he applied for the internally advertised post of acting District Clerk of Works. He did not receive a response to his application and wrote on July 29 1991 to enquire about its progress. Enclosing a copy of his letter to the principle Equal Opportunities Officer, Personnel Department and to the head of Race and Equality Unit at the Council and NALGO.On the 1 August 1991 he received a reply to his letter, copied in a similar manner, in the following terms:
"I write to clarify the situation. Regrettably, you were not shortlisted for interview for the above post, as you failed to meet requirements of the person specification from the evidence provided on our [that must be a misprint for your] application form. As you may be aware, it is standard practice not to inform non-shortlisted candidates of the result of their application unless an S.A.E. is provided. Please let me know if you require any further information."
The Appellant wrote again on August 8 asking a number of questions, including whether any consideration had been given to paragraph 4.1 of the Respondents Equal Opportunities Employment Policy Statement, which reads:
"All Council posts [and I omit some words] ...... will be open to all members of those groups discriminated against. Criteria and procedures will be altered, and reviewed, to ensure that individuals are selected, promoted, and treated on their relevant merits and abilities."
By letter dated August 15 1991 the Appellant received a full reply to the questions he had asked and it was pointed out to him that the paragraph of the statement was designed to ensure that any discriminatory of practices or procedures were eliminated and that the procedures leading to the recruitment of the position of acting District Clerk of Works did not need alteration to meet that objective. On August 29 1991 the Appellant wrote again asking, in effect, for a copy of the Job Specification pre the Statement and one after the Statement and asking what if any consideration had been given to amending those documents in the light of the Statement.He was again given a prompt answer to his questions by letter sent on September 4 1991. The Appellant presented his IT1 on November 30 1991. The complaint he made was that he submitted an application for the position of acting District Clerk of Works and he had not been accepted for an interview for that position and he enclosed the documentation to which I have just referred. He put as the date of the action he was complaining about as September 4 1991.The Industrial Tribunal held that the act of discrimination of which he was complaining was not being shortlisted and that as the Appellant had heard about this no later than the 1 August 1991 time ran from that date and the period before which a complaint had to be presented (three months) ended on October 30 1991. They held that his complaint about the job specification and the correspondence entered into after August 1 1991 was not a continuing act such as to extend the time under Section 68 7(b) of the 1976 Act. They say that the Appellant was aware of the person specification in July 1991 before he applied for the job and that he had not taken any steps in relation to that matter since. Finally, they concluded that there were no circumstances which would make it just and equitable to extend the period and therefore they had no jurisdiction.In his Notice of Appeal the Appellant says that the refusal to interview him was a continuing act extending from the 1 August to September 4 as he was arguing about the employers implementation of their Equal Opportunities Policy Statement during that period. He argues that because the Respondents had invited him to ask for further information, if he required it, in their letter of August 1, time did not start to run until that correspondence had come to an end as it did on September 4 1991.It seems to us that this is not a case where it could be said that there was a continuing unlawful regime such as the House of Lords held there to be in Barclays Bank v Kapur [1991] ICR 208 or some kind of unlawful rule or regulation which has a continuing affect, see Littlewoods v Traynor [1993] I.R.L.R. 154. What is complained of here is the failure by the employers to grant the Appellant an interview. That is a one off act which continuing consequences, just as was the decision of the I.L.E.A. not to appoint Miss Ames, Head of Department, in the case of Ames v I.L.E.A. [1977] I.C.R. 308. It seems to us that almost every act of discrimination will have a continuing effect and will often be the product of some unlawful discriminatory practice or procedure. However, Parliament clearly took the view that allegations of unlawful discrimination in the employment field should not be allowed to fester but should be dealt with in a speedy manner: hence the short time limit. It will be possible in almost every case to dress up a complaint which is effectively of a one off event, such as a failure to appoint, promote or regrade as one to which the provisions of Section 68 7(b) of the Race Relations Act 1976 applies. This will usually occur where there has been delay in presenting the complaint. Industrial Tribunals will wish to look closely to see what is the substance of the complaint and not be beguiled into finding that that sub-section applies merely because the Applicant cannot persuade the Tribunal to extend the time in the exercise of its discretion under Section 68 sub-Section 6.We consider that the Appellant's case, which he cogently argued before us cannot be accepted. He says that but for the last sentence in the letter of August 1 his complaint would have been out of time, but because of the invitation to ask further questions the Respondents where showing that their decision not to shortlist was still under consideration and could not be said to have been finally taken until the moment the correspondence ceased.In our view that contention involves reading more into the last sentence than the words themselves bear. The decision not to shortlist was not, as we read the letter, still open to debate. What was open for further correspondence were further questions which the Appellant might have had as to why he was not shortlisted or as to the shortlisting procedures. Second, we do not consider that it can plausibly be argued that the time limit does not begin until after correspondence has ceased, otherwise the time limit could be extended indefinitely as the Appellant asked more and more questions. It would not normally be clear to anyone when the correspondence was at an end; the Appellant may have taken two months to reply to the letter of September 4 and asked further questions two months later.It seems to us not to be credible that the time limit in this case could thereby be extended.Accordingly, it seems to us that the argument based on the continuation of the correspondence cannot succeed because it would be contrary to the purpose and objective of the legislation which is to ensure that complaints are made within a short period of time and there must be a certain date from which time starts to run. It may well be that in some cases, where an Applicant decides to delay presenting his application to an Industrial Tribunal because he wishes to satisfy himself that he has proper evidence to support it, the Tribunal might be persuaded to extend the period of time under Section 68 (6) in such circumstances.If what was happening in this case was that the Appellant was seeking evidence to support his complaint before making his complaint then that would have been a matter which the Tribunal could have taken into account. But bearing in mind that they were told that the Appellant was experienced in Tribunal procedure in that he had previously made three complaints of racial discrimination against his employers, they were entitled in our view to exercise their discretion in the way in which they did.Accordingly, for the reasons we have tried to give this appeal will be dismissed.