Mensah v Royal College Of Midwives [1995] UKEAT 124_94_1711

EAT
Mensah v Royal College Of Midwives
[1995] UKEAT 124_94_1711 · 1995-11-17
MR JUSTICE MUMMERY (PRESIDENT): There are two appeals in proceedings between Mrs Esther Mensah and The Royal College of Midwives. Both concern complaints of race discrimination. Both raise the point of time limits for complaints of race discrimination. Under the Race Relations Act 1976 it is unlawful for a person to discriminate against another in any circumstances, relevant for the purposes of any provision of the Act, if, on racial grounds, he treats that other less favourably than he treats or would treat other persons. There are provisions in Part II relating to discrimination in the employment field. The questions in these appeals concern the period within which proceedings must be brought. Complaints of race discrimination are brought in an Industrial Tribunal under Section 54 of the Act, but Section 68(1) provides:
"An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."
The Tribunal's jurisdiction is dependent on a complaint being brought within the time limit. There is power to extend the time limit in Section 68(6):
"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."
Sub-section 7 contains a provision relevant to the application of the time limits. That provides:For the purposes of this section-- (b) any act extending over a period shall be treated as done at the end of that period;..."The first of the two decisions was of the Industrial Tribunal held at London (North) on 30 November 1993. In extended reasons sent to the parties on 31 December 1993, the Tribunal explained why they had unanimously reached the decision that Mrs Mensah's application for race discrimination was out of time and that the Tribunal did not have jurisdiction to hear it. They came to that conclusion after hearing evidence from Mrs Mensah, who represented herself, and having heard her oral and other documentary evidence and legal argument, including argument by Counsel for The Royal College of Midwives.Mrs Mensah appealed against that decision. Her Notice of Appeal was served on 10 February 1994. She said there was an error of law in the decision of the Industrial Tribunal that her complaint was out of time, and that it was not just and equitable to extend the time limit. Her ground of appeal was that the decision not to proceed with her complaint, because it was out of time, was unlawful. She said the act of race discrimination had occurred on 7 January 1993. That was within time. The 7th January 1993 was when the Respondent College refused to give her assistance in clearing her name. They had assisted a Miss Rosser in clearing her name in 1989. She said it was considered to be within time before the hearing on 30 November 1993.The second appeal is from the decision of the Industrial Tribunal held at London (North) on 16 December 1994. The extended reasons for that decision were sent to the parties on 10 January 1995. The Tribunal unanimously dismissed the application in that case as being out of time. Mrs Mensah appealed against that by a Notice of Appeal served on 20 February 1995.We have heard both appeals together. Mrs Mensah has made submissions on questions that arise on the appeal. She has emphasised the sense of injustice which she feels. She says she has been denied justice for many years. Her overall complaint (we shall deal with the details in a moment) is that The Royal College of Midwives should have done more to help her to clear her name from the effects a decision, made in 1978, to remove her name from the Roll of Midwives; that she was not given the same help and support as others of a different race, (that is the reference to Miss Rosser which will become more intelligible as we explain the details) and that there was, on the part of The Royal College, a continuing failure to help her; and, as it was a continuing failure to respond to her pleas for help, her complaint of discriminatory treatment could not be out of time. That is the gist of her case.In order to see whether there is an error of law in the reasoning of the Industrial Tribunal in these two decisions, it is necessary to look at the two decisions in more detail, firstly at the findings of fact, and, secondly, at the reasoning that led to them to reject Mrs Mensah's claims. The first case was started by Mrs Mensah on 5 April 1993. She expressed her complaint of race discrimination in these terms:
"On the 16th of December 1992, I wrote to my Union - The Royal College of Midwives, to request for an assistance in having a case reviewed by the United Kingdom Central Council for Nursing, Midwifery and Health Visiting but I had a negative reply dated 7 January 1993. Copies of letters enclosed. I find the tone of the letter very disturbing indeed owing to the fact that they had previously defended a white person - Ms Jilly Rosser in a similar situation in the High Court with a successful outcome. By undertaking Miss Rosser's case and not mine constitutes to discrimination. I am innocent of the initial charge of misconduct which led to my dismissal by my previous employer. Rehearing of the case by the United Kingdom Central Council for Nursing, Midwifery and Health Visiting will prove my innocence. The Royal College of Midwives is in breach of the law in not giving me assistance, even though I was a full member."
We see in the letter of 7 January 1993, reference to previous discussions between The Royal College and Mrs Mensah. It says this:
"As you know, we have discussed your case in the past and I am afraid that there is very little further that I or the College can do to help.
The case was some time ago now and there is very little hope, even if there was a case, of us having any decisions overturnedI know that you also written to the President of the College who is unfortunately out of the country at the moment.I am sorry to have such bad news for you but I really do not think there is any purpose in us continuing with the correspondence."The Royal College served a Notice of Appearance on 28 April 1993 denying race discrimination and asserting that the complaint related to events which occurred many years before. They said that, to the best of their knowledge, Mrs Mensah's name had been removed from the Roll of Midwives in 1977, but restored in 1981. They said the application was brought well beyond the period of three months, beginning when the act complained of was done. It was therefore out of time.Those were the issues that the Industrial Tribunal had to decide. They set the scene for the rival arguments by referring to the background history. We have heard more of that on the hearing of the appeal. The background is that in May and November 1977 there were hearings involving charges of professional misconduct by Mrs Mensah. These hearings were before the United Kingdom Central Council. At the hearings Mrs Mensah was represented by solicitors instructed by the Royal College. At the third hearing on 2 February 1978 an order was made for the removal of her name from the Roll of Midwives. She did not appeal against that decision. She brought a case for unfair dismissal on 6 March 1978 against the Berkshire Health Authority. That claim failed in September 1979. In February 1981 her name was restored to the Register, but Mrs Mensah has failed to gain employment as a midwife, because, it seems, of what had happened in 1977 and 1978.The Tribunal referred to the complaints which Mrs Mensah had mentioned to the Industrial Tribunal. She referred to the fact that there had been some High Court proceedings, brought with the help of a solicitor, apparently on two occasions. She said that it was only in November 1992 that it came to her notice that another midwife of white origin had been assisted by The Royal College. That had prompted her to write to The Royal College, raising the question of help and of discrimination. She said that it was only on receipt of knowledge that The Royal College had assisted a Miss Jilly Rosser, that she had it in her mind that she was racially discriminated against. The Tribunal said her evidence was equivocal. She stated that it was only when she received the letter of 7 January that she was of the view that The Royal College were racially discriminatory. It was clear from a letter that she had written to The Royal College, on 16 December 1992, that she had alleged a racially discriminatory attitude of mind.The Tribunal addressed the first question, whether the letter of 7 January 1993 was an act of race discrimination. If it was, then the application presented on 5 April was within time. The Tribunal went on to consider the nature of Mrs Mensah's complaint. They said it was clear from the documentary evidence and her oral evidence to them, that her fundamental case was that The Royal College did not represent her at the appeal hearing, or at any of the subsequent High Court proceedings, because of her race. The Tribunal did not accept that the letter of 7 January was an act of race discrimination. It was the culmination of a lengthy correspondence over a number of years. If the Tribunal were to allow that letter to be regarded as an act of discrimination, that would lengthen the time limit beyond reason for the bringing of proceedings. They found that the case report regarding Miss Jilly Rosser had been reported in the Midwife's Chronicle & Nursing Notes in April 1989. They found it inconceivable that Mrs Mensah did not receive a copy of that, or did not have knowledge of the article. Her evidence was that she did not on occasions receive copies of the publication. However, the Tribunal found that she must have discussed her evidence with colleagues. The Tribunal came to the conclusion that the article must have been brought to her attention. Her evidence was that she only became aware in November or December 1992 that Jilly Rosser was white and that The Royal College had represented her successfully. The Tribunal said that, if that was the case, Mrs Mensah could even in November or December 1992 have brought a case to the Industrial Tribunal against The Royal College. But she did not do that. She did not bring a complaint until April 1993. They observed that she was clearly in receipt of advice from many sources over the years. She had not taken action in time.The Tribunal also found, as a fact, that the act of racial discrimination, if there was an act of racial discrimination, occurred as long ago as 1978 in relation to the disciplinary proceedings and the decision to strike her off the Roll of Midwives; or had occurred in 1989 when the College represented Miss Rosser successfully or at the beginning of 1992 when Mrs Mensah had problems with the authorities at Watford Hospital; or at the latest in November/December 1992 when she said she learnt that Miss Jilly Rosser was white. On that view of the matter, the act of discrimination did not occur on 7 January. The application was out of time. The Tribunal, in the light of those findings, added that she could at any time since 1978 have brought a case. She was aware of her rights. She had brought other proceedings. The Tribunal addressed the second question, whether it was just and equitable to extend time within Section 68(6). They found that it was not. They therefore had no jurisdiction to entertain the claim.As the arguments on that decision and the second decision overlap, we will refer to the second decision, before dealing with the arguments on both appeals. The second decision arose out of proceedings which started with the presentation of an application to the Industrial Tribunal in June 1994 making a complaint of race discrimination. The complaint this time was couched in these terms: on 14 March 1994, around lunch-time, Carlton Television broadcast the appeal of the two midwives, who were disciplined by East Hertfordshire National Health Service Trust, for conducting a waterbirth against hospital policy. They were both Caucasian. The Royal College of Midwives gave them full backing for the appeal. This action cleared the two midwives of charges and helped to clear their names subsequently. They failed to help her clear her name, because she was innocent of charges that robbed her of her career, that constituted discrimination under the Race Relations Act . In response to that, the College submitted a Notice of Appearance on 13 July 1994, which set out a summary of the history of events dating back to the disciplinary proceedings in 1977; the restoration of her name to the Register in February 1981; the various attempts from 1985 by Mrs Mensah to clear her name; and the assistance which The Royal College had given to her. They referred to the first set of proceedings already mentioned. They referred to the matter alleged to have been reported in a television broadcast on 14 March. The College said that she had not given particulars of the alleged act of discrimination against them. It was submitted that her complaint did not show a proper cause of action. Further particulars were required. They said it would appear that Mrs Mensah was alleging the discrimination as a continuing refusal by the Royal College to clear her name, in respect of events which took place in 1977 and 1978. The Royal College was properly advised that no legal remedy existed when the matter was raised by the Applicant in her complaint of 1985. The position since then has not changed. There is no new course of action upon which she could properly expect the College to provide further legal representation. Successful representation of other College members on entirely different matters could not be regarded as an act of discrimination.The Tribunal dealt with that matter in their decision as follows:"1. The act of discrimination alleged is the failure of the Respondent to act on behalf of the Applicant to appeal against her removal from the Roll of Midwives in 1978."...They referred to her other proceedings and said they were bound by the facts found in the earlier proceedings to conclude that her application was out of time. The only new incident since then was her becoming aware that the College supported other midwives in a claim relating to waterbirths, and as a result, she repeated her request for help, which was turned down. The Tribunal said this:
"3. The repeated refusal to assist is not in our view a new act of discrimination, but merely a re-iteration of the Respondent's position. The discovery that other people have been given assistance is also not an act of discrimination against the Applicant."
They concluded that it would not be just and equitable to extend the period in view of the earlier application on almost identical grounds, and the considerable period since the alleged discriminatory act.In her appeal against that decision the grounds stated are that the Tribunal was in error of law, in refusing to hear the case while her complaint was an ongoing one. The decision that her application was out of time was unlawful, having been made within three months of the time limit of the incident complained of. She repeated that the race discrimination was continuous since 1976. The most recent being 14 March 1994.It is clear from the way in which Mrs Mensah put the arguments this morning, and from the way she was putting her case in the Notice of Appeal, and in the arguments before the Industrial Tribunal, that she has two points. First, that her complaint was made in time. She relies on incidents in both sets of proceedings that occurred within the three months preceding the date of the Originating Application. She says that, looking at those incidents in context, they were all part of a continuing act of discrimination by The Royal College. That would mean that the discriminatory act, of which she was complaining, was some kind of policy or practice or rule existing on the part of the College, not to give her, as a person of the African race, the same help and assistance to clear her name, as is given by the College to people of other races. She cites the comparators which came to her knowledge; first, Jilly Rosser and then the two midwives mentioned in the television broadcast on Carlton television. If there is a continuing discriminatory act, then both cases have been brought within time. There is a continuing act here, because the act of which she is making complaint, the failure to help her in the way they helped people of other colours or races, extends over a period. You treat an act extending over a period as done at the end of the period. So she is in time. If it is out of time, then the Tribunal should have extended the time, having regard to all the circumstances.Miss Eady for The Royal College argues against both points. She has referred in her helpful argument to the history of these proceedings and the background to them. She has made these submissions on the time limit points. The act complained of is the refusal to provide further assistance to Mrs Mensah to clear her name. That act took place in 1978, when Mrs Mensah's name was removed from the Roll of Midwives at the conclusion of the disciplinary proceedings: even if the subsequent consideration of her request for assistance, for example in 1985 and 1986, is taken to be a separate act or a separate omission from what happened in 1978, that too is out of time. As regards Mrs Mensah's argument that the letter of 7 January 1993 is the relevant discriminatory act, she accepts that, if it is, then the application was brought in time. But it is not open to Mrs Mensah to say that it is the discriminatory act on this appeal, because the Industrial Tribunal found, as a fact, having heard oral evidence and having considered the documentary evidence, that the letter of 7 January was not the discrete separate, one-off act. It was a culmination of lengthy correspondence over a number of years. It went back to a time of the refusal to grant assistance which is well out of time.The main submission made by Miss Eady was that the discriminatory act was not, as a matter of law, dependent on Mrs Mensah's date of knowledge as to when, for example, there was a comparator. It might be relevant to consider her state of knowledge, when looking at the discretion to extend time on the just and equitable grounds, but the rule was that you look at the discriminatory act and treatment, alleged to constitute discrimination on the grounds of race. That is the gate on which the provisions of Section 68(1) applies. Section 68(1) refers to a period of three months, beginning when the act complained of was done: not when the act complained of was known about, or when the act complained of could be proved to be an act of discrimination. She argued that, even if knowledge of circumstances which would enable her to prove race discrimination was relevant to the running of the time limit on the facts found by the Tribunal, she was still out of time, because she had acquired knowledge of the case of Jilly Rosser in November or December 1992, but still did not present her application until April 1993. Miss Eady also dealt with the argument that this was a continuing act and submitted that it was not. There was no complaint here that the College had some policy, practice or rule of not giving the same assistance in these matters to people of Mrs Mensah's race or other ethnic minorities, as they give to white midwives. It was true there was a continuing effort on the part of Mrs Mensah to clear her name and to get The Royal College to assist her. It is true that, over a number of years, the College have informed her that there is nothing more that they can do to help her. The letter of 7 January 1993 is the latest of the efforts of The Royal College to explain to Mrs Mensah that the matter has really reached the stage when there is nothing more that can be done about her case. What the College were doing, and we agree, on 7 January was to restate a position which they had taken up long before. It was not a separate, one-off act which started a time limit running.We agree with Miss Eady that this is not a case which falls within Section 68(7)(b). There is no error of law in the Tribunal's decision in this part of the case. Miss Eady referred us to the Court of Appeal's guidance in Sougrin v Haringey Health Authority [1992] ICR 650 and submitted that, even making the allowances which Lord Justice Balcombe says at page 653 F-G should be made, in the case of people who are filling in their own originating applications without the benefit of professional advice, it cannot be said that what Mrs Mensah is complaining of is an act extending over a period, a continuous act. We agree it is a one-off act and the complaint about it was made years after that act occurred.The Tribunal were therefore right. They had no jurisdiction to hear the first case which was out of time. As to their discretion in refusing to extend time, we could only interfere with the exercise of that discretion on the ground that no reasonable Tribunal, in all the circumstances, could have refused to extend time. Considering all the facts contained in the decision and in the documents, the Tribunal were entitled to reach the conclusion that it was not just or equitable, after so long a period, to extend the time for the complaint.The second complaint can be dealt with more briefly. As Miss Eady observed, there is no attempt in the second complaint to identify a decision by The Royal College. What is relied upon is the fact that the College had assisted two white midwives in professional disciplinary matters: and the act of discrimination complained of is, as before, that that is to be compared to the failure of the College to afford further assistance to Mrs Mensah in clearing her name. Miss Eady accepts that Mrs Mensah presented this complaint within three months of her becoming aware of the assistance that had been given by the College to the two white midwives, but submitted that, as a matter of law and as a matter of common sense, the decision by the College to provide assistance in professional disciplinary cases could not provide a new cause of action every time that assistance was given. The fact that the College was assisting other members, whether they were white or of ethnic minorities, could not by itself create a cause of action for Mrs Mensah under the 1976 Act .We agree that the appeal case fails for the reason that the act complained of pre-dates, by years, not months, the start of these proceedings. It is not correct to say that the time under Section 68(1) only runs from the date when knowledge is acquired, for example, of a comparable person of a different race or colour who has received more favourable treatment. On that aspect of the case we were referred by Miss Eady to Clarke v Hampshire Electro-Plating Co Ltd [1991] IRLR 490 . We do not think that that case decides that the date on which a discriminatory act occurs is dependent on the knowledge of the complainant or facts or on the circumstances which would enable the complainant to prove discrimination. An act occurs when it is done, not when you acquire knowledge of the means of proving that the act done was discriminatory. Knowledge is a factor relevant to the discretion to extend time. It is not a pre-condition of the commission of an act which can be relied on as an act of discrimination.Insofar as Mrs Mensah relied on the continuing act submission on the second appeal, we agree that, for the reasons already given, it is based on a misunderstanding of the law relating to an act extending over a period. On this point, Mrs Mensah cited a summary of a decision of this Tribunal in Ironsides Rayonbars v Lindsey [1994] ICR 384 . In our view, there is nothing in that case which has a bearing on the question which we have to decide on this appeal. For those reasons, we are unable to find an error of law in either of the Industrial Tribunals decisions. We agree with the decision of the Tribunal that the complaint of race discrimination, which is denied and always has been denied by The Royal College, cannot be investigated by any Industrial Tribunal, because it is out of time. No Industrial Tribunal has jurisdiction to entertain the complaint. There is no legal flaw in the refusal to extend the time under Section 68(6).We appreciate, as do other courts, the sense of grievance which affects Mrs Mensah. This has been referred to in the Court of Appeal in the judgment of Lord Justice Glidewell in other proceedings, in which Mrs Mensah was seeking, in 1993, to obtain a review of the decision on 26 September 1979, rejecting her claim of unfair dismissal. The fact that an appellant has a deep sense of grievance is not, however, a ground for allowing a case to be brought out of time. The fact is that these events, which have given rise to this grievance, occurred seventeen or eighteen years ago. There was no appeal at the time against the removal of the name from the Roll of Midwives. We can understand how Mrs Mensah feels; that she is dogged by what happened in those days. It does not seem fair to her that the restoration of her name to the Register in February 1981 has not overcome the problem of obtaining work as a midwife. This is, however, something she must learn to live with. We cannot see how anything can be done by any Tribunal, or by The Royal College of Midwives, to deal with the complaint, which she seeks to ventilate in these proceedings. With those comments we dismiss both appeals, because there is no error law in either decision.