Ewane v Department For Education & Employment [1997] UKEAT 1447_96_1912

EAT
Ewane v Department For Education & Employment
[1997] UKEAT 1447_96_1912 · 1997-11-13

JUDGE PETER CLARK :

This is an appeal by Miss Ewane against a decision of the Stratford Industrial Tribunal sitting on 23rd October 1995, dismissing her complaint of unlawful racial discrimination brought against the respondent Government Department on the ground that it was time-barred. Extended reasons for that decision are dated 7th November 1996.

The facts

The appellant was born in 1954 in Cameroon. Between 1969 and 1971 she studied at the Baptist Teachers Training College in Cameroon; at the end of those studies she obtained a Grade 2 Teachers Certificate. Thereafter she attended the University of Sierra Leone, which University conferred on her a BA degree.She came to the United Kingdom in 1977, and after a variety of jobs she responded to an advertisement by the then Inner London Education Authority encouraging members of ethnic minorities to apply for teaching posts. She obtained a post and began teaching in a London school. Her salary was paid at a reduced level until she was able to obtain Qualified Teacher Status ["QTS"] from the respondent.On 17th March 1989 she completed the respondent's application form for recognition as a Qualified Teacher, setting out her academic background and qualifications obtained in Cameroon and Sierra Leone.Following a request for further information in September 1989, the respondent wrote to the appellant on 31st January 1990, explaining that it was a statutory requirement for employment as a teacher in a maintained school that a person has QTS under Schedule 5 to the Education (Teachers) Regulations 1982 . Such qualification may be acquired either by successfully completing an approved teacher training course in England and Wales or a comparable overseas qualification. Having considered the appellant's academic history, the respondent concluded that the requirement of comparability was not met in her case, and her application for QTS was rejected.The Industrial Tribunal found that she did not receive that letter until a further copy was sent to her by the respondent in October 1994. However, after taking up a post at St Paul's Way School in September 1993, the tribunal found that by December 1993 she was aware that she had been denied QTS, and the detriment which she thereby suffered.She took advice as to her position and as a result contacted the National Academic Recognition Information Centre ["NARIC"] for its opinion as to the status of her overseas qualification. By letter dated 13th January 1995 NARIC expressed the view that based on her Cameroon teaching qualification, she ought to be entitled to QTS.Armed with that opinion the Commission for Racial Equality ["CRE"] wrote on her behalf to the respondent on 20th April 1995, inviting it to reconsider its position and to afford the appellant QTS.By a letter dated 6th July 1995 the respondent replied to the CRE. It did not accept the NARIC opinion, and maintained its refusal to accord QTS to the appellant. The course which she had completed in Cameroon was not regarded as comparable to an approved teacher training course in the United Kingdom.We pause to observe that it was the appellant's case that that letter was not received until 16th July 1995. The tribunal made no finding of fact as to the date of receipt.On 11th October 1995 she presented her Originating Application complaining of racial discrimination against the respondent to the Industrial Tribunal.

The Industrial Tribunal decision

Having set out the facts, the tribunal directed itself to ss. 12, 54 and 68 of the Race Relations Act 1976 ["the 1976 Act"]. As to s.68, the limitation provisions, it appears to have considered only whether the appellant's complaint related to a single act of discrimination, rather than an act extending over a period of time within the meaning of s.68(7)(b). We shall refer to the relevant statutory provisions in detail later in this judgment.The tribunal concluded that the act complained of by the appellant was the refusal by the respondent to accord her QTS. That decision was taken in January 1990. Although the appellant was unaware of it at that time she did become aware of the decision by Christmas 1993 at the latest, and time then began to run. The respondent's letter of 6th July 1995 simply confirmed to the appellant what she already knew. It was not a new decision giving rise to a fresh cause for complaint. In these circumstances the tribunal held that the complaint, dating back to 1993, was presented outside the primary limitation period and that it would not be just and equitable to extend time under s.68(6). On this footing the complaint was dismissed.

The 1976 Act

The statutory tort of unlawful racial discrimination involves two principle elements. First, there must be discrimination within the meaning of Part I of the Act. Here, the appellant complains of indirect discrimination under s.1(1)(b). Secondly, that discrimination must be unlawful under Part II of the Act. In this case the appellant relies upon s.12, which provides so far as may be material:
"(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person - (a) in the terms on which it is prepared to confer on him that authorisation or qualification; or (b) by refusing, or deliberately omitting to grant, his application for it;"
We should also refer to s.4(2) of the Act which provides, again so far as is material to our considerations:
"(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-
. ..(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them;"The jurisdiction of Industrial Tribunals to hear complaints of unlawful racial discrimination brought under s.54 of the Act is subject to the limitation provisions contained in s.68.S.68, so far as is material, provides:
"(1) 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.
. ..(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.

(7) For the purposes of this section-

...(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;"

The case law

Until the decision of the Court of Appeal in Rovenska v General Medical Council (GMC) [1997] IRLR 367 the relevant authorities fell into broadly two categories. Those where it was held that the complaint related to a continuing policy or practice amounting to an act extending over a period, so that time did not begin to run until the end of that period, and those where it was held that the complaint was one of a single act with continuing consequences. There, time ran from the single act.In the first category the leading case is Barclays Bank PLC v Kapur [1991] 2 AC 355 (HL) . Another example is to be found in Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 .Into the second category falls the case of Sougrin v Haringey Health Authority [1992] ICR 650 (CA) , approving the Employment Appeal Tribunal decision in Amies v Inner London Education Authority [1977] ICR 308 , and Cast v Croydon College [1997] IRLR 14 .As we read the Court of Appeal decision in Rovenska , it straddles the two earlier categories. There, Dr Rovenska qualified as a medical practitioner in Czechoslovakia. She came to the United Kingdom in 1982 after nine years experience in her homeland. She sought limited registration pursuant to s.22 of the Medical Act 1983 . For that purpose she was required under the Act to display the necessary degree of proficiency in the English language. The GMC did not regard a doctor as having reached the necessary level of proficiency unless he or she has passed or been exempted from a test conducted by the Professional and Linguistic Assessments Board ["PLAB"].Dr Rovenska failed the test in 1984 and 1985. She unsuccessfully applied for exemption three times from 1982. Her fourth attempt was in 1991 and on 2nd December 1991 she received a further refusal by the GMC. The Greenwich Council for Racial Equality then wrote on her behalf, enclosing a reference from her tutor as to her English. However, on 10th January 1992 they received the same negative reply. She presented her complaint of unlawful racial discrimination on 31st March 1992.An Industrial Tribunal dismissed her complaint. On her appeal to the Employment Appeal Tribunal a division presided over by Mummery J allowed her appeal on the basis that her complaint, which was one of indirect discrimination under s.1(1)(b) of the 1976 Act, related to a scheme for exemption extending over a period, and thus fell into the first category.The Court of Appeal dismissed an appeal by the GMC but on different grounds to those relied upon by the Employment Appeal Tribunal. Brooke LJ, delivering the leading judgment of the Court, drew a distinction between complaints relying on s.4 of the 1976 Act, such as in Kapur and Owusu , where the unlawfulness alleged under Part II of the Act lay in a continuing act in the way in which the employer afforded to its employees access to opportunities for promotion, transfer or training or to any other benefits, facilities or services, and a complaint under s.12(1)(b).In the case of Dr Rovenska she was relying upon a single act by the GMC in refusing to exempt her from the PLAB test. However, on each occasion that her application for exemption was refused, the GMC committed an alleged act of unlawful discrimination. Accordingly she could rely upon the last refusal which was made less than three months before the presentation of her complaint, and the complaint was in time.

The Appeal

Mr Clayton, on behalf of the appellant, submits that the tribunal fell into error in failing to consider whether the respondent's refusal to accord the appellant QTS constituted an act extending over a period of time which continued up to the date of the complaint. He submits that the complaint may properly be brought under s.12(1)(a) of the Act, which allows for a continuing act, as opposed to the single act of refusal under s.12(1)(b).In the alternative he submits, relying upon Rovenska , that there were here two single acts of discrimination, the last one being the respondent's refusal contained in their letter of 6th July 1995, and not received until 16th July.Mr Bishop seeks to uphold the tribunal's decision on the basis of its finding that the relevant act of refusal under s.12(1)(b) took place in 1993; the appellant cannot rely upon the letter of 6th July 1995; it was open to the tribunal to refuse to extend time under s.68(6) in these circumstances.He accepted that the respondent operated a continuing policy of refusing to recognise the appellant's overseas qualifications as comparable to those of a person who had successfully completed an approved teacher's training course in the United Kingdom.

Conclusion

The first task is to identify the nature of the complaint. Here, it is one of indirect discrimination rendered unlawful by the provisions of s.12.We have considered Mr Clayton's submission that the appellant's complaint falls within s.12(1)(a), a point not decided by the Court of Appeal in Rovenska . We reject it for the reasons given by Tucker J in Virik v GMC (EAT/919/95 - 29th January 1996. Unreported) . In our judgment this complaint is properly brought under s.12(1)(b).Next we considered whether the complaint related to an act extending over a period within the meaning of s.68(7)(b). We find that it does not. The complaint under s.12(1)(b) relates to the respondent's refusal to accord the appellant QTS, a single act of refusal.However, in the light of the respondent's concession that it adopted a continuing policy of refusing to recognise the appellant's overseas qualifications as comparable to an approved United Kingdom teacher's training qualification, we are satisfied, applying the reasoning of the Court of Appeal in Rovenska , that each refusal by the respondent constituted a fresh act of potentially unlawful racial discrimination. It follows that in our judgment the Industrial Tribunal fell into error, not then having the advantage of the Court of Appeal's decision in Rovenska before it, in regarding the sole act complained of as having taken place in 1993. In our view the appellant is entitled to reply upon the respondent's refusal contained in their letter of 6th July 1995.

Disposal

It follows that we shall allow the appeal and set aside the Industrial Tribunal's decision.Unfortunately, because it was unnecessary for the first tribunal's decision, no finding of fact was made as to when the respondent's letter of 6th July 1995 was received by the CRE, acting on behalf of the appellant. She asserts that it was not until 16th July 1995. That is not conceded by the respondents.In these circumstances we must remit the limitation issue to a fresh Industrial Tribunal for rehearing. It will be for that tribunal to decide as a question of fact when the letter of 6th July 1995 was received by the CRE. If it was after 11th July 1995 the complaint will be in time. If it was received before that date it will be for the Industrial Tribunal to exercise its discretion under s.68(6) and decide whether or not it is just and equitable to extend time.