Ford Motor Company Ltd v Shah & Ors [1995] UKEAT 530_95_0310

EAT
Ford Motor Company Ltd v Shah & Ors
[1995] UKEAT 530_95_0310 · 1995-10-03
For the Respondents MR R ALLEN Q.C.

Messrs Pattinson & Brewer

30 Great James Street

London WC1N 3HA

MR JUSTICE MUMMERY (PRESIDENT):

Introduction :This is an appeal against an interlocutory order made by the Chairman of the Industrial Tribunal sitting alone at Stratford on 17th May 1995, granting leave to Mr N A Shah and six other applicants to amend their respective originating application by substituting amended grounds in support of their complaints of race discrimination against the Ford Motor Company Limited ["Ford"].Appeals against interlocutory orders are unusual and rarely succeed because most orders of that kind (e.g. for discovery of documents, further and better particulars, amendment of pleadings) are made in the exercise of a discretion which can only be disturbed on appeal if there has been an error of legal principle or a decision which no reasonable tribunal, with a proper appreciation of the facts and a correct understanding of the law, could have reached. Perverse or irrational orders may result from the failure of the Tribunal to take relevant factors into account or by their taking irrelevant factors into account.History of Proceedings :A brief history of the proceedings will set the context in which the amendment was allowed.(1) The originating applications were presented to the Industrial Tribunal as long ago as May 1992. The applicants are all HGV truck drivers employed by Ford at their works at Dagenham. The applications differ in personal detail, but contain essentially the same complaint. The race discrimination, alleged to have occurred on 24th February 1992, took the following form detailed in Box N of each of the originating applications.
"I applied for a transfer and promotion to the Ford Truck Fleet as a H.G.V. driver. My application was finally refused on 24th February 1992 with the exhaustion of the internal procedure. This was an act of racial discrimination as it failed to recognise the evidence of my ability to meet all the requirements of the job and that I was as well or better qualified than successful applicants for the jobs from other racial groups. The decision on 24th February 1992 was racially discriminatory through its failure to recognise the statistical and verbal evidence of direct and indirect discrimination earlier in the process of application for job transfer. As well as losing financially, I feel hurt by the discrimination."
All the originating applications were presented within three months of 24th February 1992, the date on which the internal procedure was exhausted. It is common ground that Section 68(1) of the Race Relations Act 1976 deprives the Industrial Tribunal jurisdiction in respect of a complaint unless that complaint "is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done." It is also common ground that what occurred on 24th February 1992 was the final rejection of the applicants' appeals under Ford's grievance procedure. The applicants had previously raised grievances in respect of the rejection of their applications for transfer.(2) Ford served notices of appearance in substantially similar form in each case at the beginning of July 1992. The main points in each case were these. The applicants had responded during May 1990 to an internal notice requesting applications for positions as Heavy Goods Vehicle drivers at Grade 4, usually the highest grade attainable for employees who have not completed a recognised apprenticeship. To be accepted onto the Ford HGV driver training programme, candidates had to go through a selection assessment and interview process. The applicants were not selected because they failed the driving assessment and were informed that their applications had been unsuccessful. They were given a copy of their driving assessment report. The applicants did not accept the decision and laid a formal grievance in line with Ford's grievance procedure. During formal hearings of the grievance the applicants were given the opportunity to discuss their case with management. After viewing the available evidence, management came to the conclusion at the final hearing that the assessor had acted fairly and reasonably in not recommending them for the next stage in the selection process. The decision not to recommend them for further consideration as truck fleet drivers was upheld. Ford contended that the applicants had been treated fairly and in line with their well-established equal opportunities policy. Ford requested further and better particulars of the complaints, specifying the events and circumstances of the alleged racial discrimination, the evidence relating to those incidents and the names of employees alluded to as comparators.(3) Nothing happened for nearly three years because the parties sought to negotiate. By consent the proceedings went to sleep until the spring of 1995 when they were reactivated.(4) On 17th May 1995, the Chairman of the Industrial Tribunal at London (North) held at a meeting for directions. Among the directions sought was an application by the applicants for leave to amend the originating applications by striking out the existing details of complaint in Box 10 and substituting amended grounds of application. That application, along with an application for consolidation, was opposed by Ford. An order had been made on 9th May 1995 that the applicants should provide further and better particulars of the original grounds of complaint relied on by 16th May 1995. That order was set aside by the Chairman on 17th May 1995.(5) In a letter dated 18th May 1995 the Chairman gave leave to the applicants to amend the originating applications as sought. Ford were given time in which to serve amended notices of appearance, if so advised. A direction was also given that all seven cases should be considered together, as they arose out of a common background, and there were facts common to all cases. Consolidation would save repetition of evidence, and repeated appearances of representatives.(6) The Chairman rejected the grounds of opposition by Ford. The basis of their opposition to the proposed amendment was that it put forward a wholly different cause of action. In the original applications the racial discrimination complained of on 24th February 1992 was racial discrimination in the conduct or process of determining the grievance procedure initiated by each applicant after he had failed to get the job for which he had applied. Counsel for Ford contended that the acts of racial discrimination set out in the proposed amendment were different, were out of time, and therefore ought not to be allowed. Ford would be faced with having to refute allegations which had never been made before, and dealing with matters which had occurred five years ago or more. That would be prejudicial to Ford. The Chairman's view was that Ford's construction of the complaint in Box 10 of the originating applications was too restrictive. In paragraph 12 of the letter of 18th May 1995 is was stated:
"12 ... It seemed clear to the Chairman, that the racial discrimination complained of, in the original Box 10 , is the treatment received by the Applicants in their rejection for the jobs sought, and in the whole procedure culminating in the final decision of 24 February 1992. They do not just complain of racial discrimination by personnel in the conduct of the grievance procedure. The Chairman is not disposed to apply to the original Box 10, apparently drafted by a union official, and copied by the Applicants, the strictness of interpretation, which [ Ford ] contends for."
(7) The amended grounds for application allowed by the Chairman run to almost 12 pages and allege discrimination against the applicants who are all of ethnic minority origin and not white by colour. The discrimination complained of is in relation to that their unsuccessful applications for drivers within the Ford Truck Fleet based at Dagenham. It is stated that:
"Each of them considers that they have suffered discrimination on the grounds of their racial origin in the refusal to appoint them to the truck fleet ..."
The detailed reasons in support of that are set out in paragraphs 4 onwards. In particular, complaint is made that Ford operated a selection system in 1990 which grossly favoured white applicants. They indicated in paragraph 18 of the grounds that they would:
"... rely on their own treatment in the course of the recruitment exercise and also that afforded to their co-Applicants as demonstrating a pattern of less favourable treatment against non-white Applicants."
Further particulars are given in relation to each individual applicant. The amended grounds concluded with an allegation that each of the applicants have suffered direct race discrimination for which they seek a declaration, compensation, including injury to feelings and such recommendations as the Tribunal may deem appropriate.(8) Ford appealed against the Chairman's order by Notice of Appeal served on 25th May 1995. The grounds of appeal assert that the Chairman erred in law in misconstruing or misapplying Section 68(1) and (7)(b) of 1976 Act, and, in particular, in concluding that the rejection by Ford of the applications for transfer/promotion to the truck fleet was an "act extending over a period" culminating in the final rejection of the grievances on 24th February 1992. He ought to have concluded, as a matter of law, that the applicants' pursuit of the grievance against the rejection of their effective application to transfer did not have the effect of extending the time fixed in Section 68(1) for presenting a complaint of racial discrimination in respect of such rejection. The Chairman had failed to treat each of the applications as having identified the act complained of as the final rejection of grievances on 24th February 1992 and had erred in treating the amended grounds as simply amplifying the existing course of action, when they in fact introduced a new one. No complaint had been brought by the applicants within three months of the rejection of their application for transfer in July 1990. The applicants, in their amendment, were seeking to make such complaints for the first time long after the act of which they were complaining. Further, even if the applications were properly to be regarded as raising a complaint in respect of the rejection of the applications, that complaint was presented well outside the three month period.Ford's Submissions :Ford's grounds of appeal were amplified by Mr Griffiths-Jones in his oral argument at the hearing of the appeal. His submissions may be summarised as follows:(1) The applications for transfer to the Ford Truck Fleet had been rejected during a process which culminated on the date of the notification of rejection of the application in 1990.(2) If the applicants had wished to complain of race discrimination in respect of the rejection of their applications for transfer, they could and should have done so immediately. If the rejection was the act complained of, that act was complete and the cause of action arising from it had crystallised.(3) Accordingly, by May 1992, when the originating application were presented, complaints under Section 54 of 1976 Act in respect of the rejection of the applications for transfer were out of time. The wording of the applications themselves recognised this. Box 10 was phrased in terms which were apt to raise complaints in respect of the manner in which their grievances had been finally determined on 24th February 1992.(4) The case is similar to Adekeye v The Post Office (1) [1993] ICR 464 . In that case, the applicant complained of discrimination in relation to a decision to dismiss her. Her complaint was presented more than three months after the initial decision, but within three months of the rejection of her appeal. The Tribunal decided that her application was out of time, but the Appeal Tribunal allowed her appeal on the basis that her application was worded in such a way as to include a complaint of discrimination in relation to the rejection of her appeal. That was a distinct complaint presented in time. The matter was remitted to the Industrial Tribunal to hear that complaint. Mr Griffith-Jones relied on a passage in the judgment of May J, at page 470A-F which recognised a distinction between (a) a complaint of racial discrimination in relation to the original dismissal and (b) a complaint of racial discrimination in relation to the outcome of the appeal against the decision to dismiss. An application alleging that the applicant was discriminated against in the determination of the appeal could be within time, though a complaint in relation to the decision to dismiss more than three months before the presentation of the complaint would be out of time.(5) The original applications would only have been in time in respect of the complaints about rejection of the transfer applications if the "act complained of" could be regarded as "extending over a period" within the meaning of Section 68(7) of the 1976 Act expiring only with final rejection of the grievances on 24th February 1992. Mr Griffith-Jones again relied on Adekeye (Supra) as authority of the proposition that there was no continuing discrimination extending over the period between the original decision and the appeal.: See page 470E. Mr Griffith-Jones cited Sougrin v Haringey Health Authority [1991] ICR 791 (EAT) and [1992] ICR 650 (Court of Appeal) . There was a clear distinction between(a) an "act extending over a period" and(b) the continuing consequences of a non-continuing act. If the refusal of the application was a discriminatory act, that was a once-and-for-all act which crystallised when the rejection took place. That act had continuing consequences in the sense that the applicants were not transferred as requested, but there was no discrimination extending over the period between the rejection of the application and the conclusion of the grievance procedure. See 1992 ICR at 659F, and 1991 ICR at 796E, where Wood J said that:
"Thus, "a continuing act" should be approached as being a rule or regulatory scheme which during its currency continues to have a discriminatory effect on the ground of sex or race."
(6) The Chairman of the Tribunal incorrectly understood and applied these principles. He failed to distinguish between(a) the rejection of the transfer of applications and(b) the conduct of the grievances, and wrongly treated the complaints as being in respect of a continuing act extending over a period within Section 68(7). He incorrectly construed the original complaints as directed against both the original rejection of the applications for transfer, and the rejection of their grievances. He should have ruled that, insofar as the original complaints were directed to the rejection of the transfer applications, they were out of time and therefore a tribunal had no jurisdiction to hear them. In conclusion, he ought to have ruled that the substituted amended grounds related to a complaint which was out of time both at the moment when the application for amendment was made and also at the earlier time of presentation of the complaint.Conclusions :We have reached the conclusion that the submissions of Mr Griffith-Jones have not established an error of law in the decision and that we should accordingly dismiss this appeal. We accept the arguments advanced by Mr Robin Allen Q.C. on behalf of the applicants. This appeal does not raise any point of law. The legal position is as follows:(1) The original complaints, properly understood, relate both to the rejection made in the recruitment exercise in 1990 and to the conduct of the grievance procedure following that rejection. The distinction drawn by Ford between the rejection in 1990 and the termination of the grievance procedure in February 1992 is artificial. If Ford were right, the Industrial Tribunal would have jurisdiction to consider a complaint of discrimination in relation to the conduct of the grievance procedure but not in relation to its substance, even though the substance of the grievance was at all times acknowledged to concern allegations of race discrimination in the selection and assessment process.(2) Ford themselves have never been in any doubt that the applicants' complaint to the Industrial Tribunal concerned the whole process from the selection and assessment procedure to the conclusion of the grievance procedure. Ford's Notice of Appearance deals in some detail with the selection process and invokes Ford's equal opportunities policy in support of the assertion that there was fair treatment in line with that policy. The long period of inactivity in the proceedings was as a result of the enquiries set up by Ford into the recruitment process, not just into the grievance procedure.(3) Ford's own solicitors had themselves, in objecting to the consolidation of the cases, recognised that the cases arose out of the selection process carried out by Ford, not just out of the grievance procedure. We have been referred to a letter written by Lovell White Durrant on 20th July 1992.(4) While there was an extant grievance procedure there was, in our view, an act extending over a period for the purposes of Section 68(7)(b) of 1976 Act. In Littlewoods Organisation plc v Traynor [1993] IRLR 154 it was stated that:
"The decision whether there is a single act having continuing consequences or a continuing act is one which must involve consideration of the particular circumstances."
See paragraph 11 of the decision.It appears from that case that an act of discrimination may extend over a period after the original act of discrimination if, during that period, the employers have failed to implement remedial measures fully; in that case, the measures were the appointment and training of a new supervisor in place of a supervisor against whom a complaint of racial abuse had been brought. So long as the remedial measures agreed upon were not actually taken a situation involving racial discrimination continued. Allowing that situation to continue amounted to a continuing act. In this case there was rejection of the application for transfer which continued while the grievance about the rejection was being investigated and might be established.(5) The Chairman of the Tribunal correctly construed the originating application and the law relating to one - off acts of discrimination and continuing acts. There is, therefore, no legal error in the exercise of his discretion to grant leave for the amendment.For these reasons the appeal is dismissed.