Clouden v London Borough Of Hackney [1999] UKEAT 594_98_1102

EAT
Clouden v London Borough Of Hackney
[1999] UKEAT 594_98_1102 · 1998-07-22
MR JUSTICE MORISON (PRESIDENT) : This is an appeal by Mr Clouden ["the applicant"] who had been employed by the London Borough of Hackney ["the employer"] from March 1983 until 19 July 1996.The history to this appeal was complicated as it concerned 3 different Originating Applications and a number of allegations made by the applicant. Accordingly the background facts to this appeal, which are taken from the chronology supplied by the applicant's counsel and from the tribunal's decision, are set out in more detail than usual.In July 1994 a report was circulated which detailed plans to delete the applicant's post of Communities Manager. In November 1995 a Social Services Committee approved a proposed re-structuring of the Communities Liaison Unit which involved the deletion of the post of Communities Manager. On 29 November 1995 the applicant received a letter from the employer, which said, in part, the following:
"As you are aware last night's committee deleted your post of Communities Manager. Since there are no posts for you to be assimilated to, you will now become a redeployee. I am therefore writing to clarify for you the terms of the redeployment procedure as it affects you."
The applicant alleged that from November 1995 to March 1996 he continued to enquire of senior colleagues, including his line manager, why his management training that had been previously arranged had not been implemented. He also sought clarification as to what efforts were being made to find him alternative employment and of his employment status.On 9 January 1996 the applicant met with Tim Strong of the employers and was invited, and agreed, to attend a competitive interview for the post of Office General Manager on 11 January 1996. The applicant failed to attend and the post was given to Judy McNiece, the only other candidate.On 11 April 1996 the first Originating Application, numbered 24953/96, was submitted, alleging discrimination on the grounds of sex and race. For ease of reference this application will be referred to as the "first application". The applicant set out the details of his complaints as follows:
"Because of my race and sex my employer has persued a course discrimination [sic], persecution, and has instigated a campaign that has led to my being removed from my post and being refused the normal opportunities which are available to my white colleagues. Furthermore, my employer has instigated those staff whom I manage to racially abuse me and has given full support to this activity. My employer has set specific training conditions which were applicable to me and not to others so as to remove me from my post. I appealed to the Chief Executive who did nothing. My employer undertook to provide me with alternative employment and is now refusing to honour its undertakings."
On 17 April 1996 the applicant was absent from work and was asked to provide a medical certificate or to report as sick or to confirm that he had previously booked annual leave or flexi leave. He did not do so and he was not paid that day.On 24 May 1996 the applicant wrote to the tribunal regarding the deduction, stating that his pay had been stopped in spite of following company procedure and reporting to the Sickness Officer. The applicant requested that the matter be incorporated into his first application and requested the tribunal's protection from the "continuation of the persecution outlined in my [first] Application to the Tribunal". The tribunal dealt with the letter as a second application, claiming unlawful deduction from wages. The application was numbered 37218/96 and to prevent confusion will be referred to as the "second application".On 19 July 1996 the applicant was dismissed by the employer. On 22 October 1996 he wrote to the tribunal outlining an unfair dismissal and a racial discrimination claim, the tribunal treated this as a third application and it was numbered 3200814/96 and we shall refer to it as the "third application". The letter was in the following terms:
"Firstly, I must apologise for the delay in issuing fresh claims against the London Borough of Hackney. The point being, I have been unwell and as a consequence have been unable to undertake work on the case.
However, my condition has slightly improved and in this light I have outlined on the attached pages, details of the claims relating to the following:

(i) Unfair Dismissal

(ii) Racial Discrimination."

The race discrimination aspect of the claim was in similar terms to the first application; that he was wrongly deemed to be a "redeployee" and refused benefits by the Council; that available posts were not offered to him and he was given less favourable treatment in comparison to other colleagues; and that the council did not protect him from discrimination. The letter also contained a complaint that his dismissal was unfair and prompted by racial motivation. In particular he stated that:
"I was informed by the Personnel Section that the Department did not want someone of Afro Caribbean origin in the Senior Communities Officer's Post."
The employer filed a Notice of Appearance in which it denied both claims and asserted that the claims were outside the three month statutory time limit.On 22 September 1997 there was a hearing before the tribunal Chairman. General directions were given, such as discovery, an agreed chronology and agreed bundles. The applicant indicated that he proposed to call 8 witnesses. The Chairman attempted to clarify the matters in issue in the case in a letter to the parties, which was in the following terms:
"a. Whether the Applicants removal from his post of Communities Manager for the Respondent was motivated in any way on account of his sex or race.
b. Whether the Respondent made an unauthorised deduction from the Applicants wages in respect of his absence on 17 April 1996.c. Whether the Applicants dismissal by the Respondent on 19 July 1996 was motivated on account of his race."On 28 January 1998 the matter came before a full tribunal sitting at Stratford. Counsel on behalf of the employer addressed the tribunal first and submitted that the claims of sex and race discrimination and of unfair dismissal were all submitted out of time and accordingly the tribunal did not have jurisdiction to hear the claims. It was acknowledged that the second application claiming unlawful deduction from wages was made timeously and could be adjudicated upon.An application was made by the applicant's counsel, Mr Uduje, who also appeared before this Court on behalf of the applicant, that the second application claiming unlawful deduction from wages be amended to include a claim of victimisation.The tribunal heard evidence from the applicant only and the decision, at paragraph 15, states that "Unhappily we were able to treat him as a reliable witness." We accept that that sentence contains a typo-graphical error and should have read " un able to treat him as a reliable witness." That reading of the judgment would be in keeping with the tribunal's findings on the nature of the applicant's evidence and the finding at paragraph 31 of the judgment that the applicant's evidence was unreliable.Under the heading "Our Conclusions", the tribunal made the following findings on the question of the claims being out of time:"Mr Uduje appears to recognise that the specific instances to which we have referred already in our findings of fact, may be made out of time, but he says that they were all brought in the context of a continuing conduct and all, therefore, fall to be validated…Every allegation of race or sex discrimination must be viewed as a discreet act, unless it is a continuing act, or in other words that it is "extending over a period" as the 1975 and 1976 Acts respectively provide. In regard to acts which extend over a period it is important for us to distinguish between an act which is said to be discriminatory and the consequences of that act which so continue. If, for example, an employee can be said to have failed to deal with a grievance complaint by its employee and that failure is on account of discriminatory behaviour then very probably the employers failure, if it exists, is of a continuing nature and so may come to be validated by reference only to the date of the end of the period alleged. On the other hand if that employer undertakes the grievance process by, for example, a formal hearing but there conducts itself in a discriminatory fashion, it is very likely that it is a discreet act, albeit that the consequences of the Respondents conduct for the employee may be likely to, and probably will continue. In our view the second example cannot be validated.24. We are entirely satisfied that on what amounts almost to an agreed chronology, the deletion of the Applicants post, communicated by letter of 29 November 1995 and the events of 9 and 11 January 1996 must necessarily be out of time, notwithstanding, in the latter case, by only one day. However, we are content that Mr Clouden's allegations of his employers failure to provide alternative employment, if proved, are made timeously and we find accordingly.25. As to Mr Clouden's third application (case 3200814/96), the three month time period, by agreement, commenced to run on 19 July 1996. Accordingly, any such application arising therefrom would need to be made by midnight on 18 October 1996. That application was so made on 22 October 1996 and is out of time accordingly."The tribunal then turned to the question of whether it would be 'just and equitable' to extend time in the discrimination claims and whether it had been 'reasonably practicable' for the applicant to submit his unfair dismissal claim within the time period.
"30. We have found no evidence whatsoever to support the Applicants contention that his inability to file his unfair dismissal complaint related to his ill heath, and we have taken into account that inability did not manifest itself in his other business dealings. Accordingly, we do not validate that complaint because we are satisfied it was reasonably practicable for it to have been made timeously.
31. As to the allegations of discrimination we have taken into account that we have little, or any, clear explanation from Mr Clouden to explain his delay. We have balanced as well, in favour of the Respondent, the view we have taken as to Mr Clouden from the unreliability of his evidence and it is perfectly plain to us he has done little, save at the very last moment, to prepare himself properly for these proceedings. We see no just and equitable reason to validate Mr Clouden's late discrimination claims and we do not do so."The tribunal then dealt with the second application, for unlawful deduction from wages and the application to amend the claim to include victimisation. The tribunal rejected counsel's submission that it was evident from the letter of 24 May 1996, by the reference to the first application and to persecution, that the claim implicitly included an allegation of victimisation. The applicant had not raised the issue of victimisation at the directions hearing nor upon receipt of the Chairman's letter setting out the matters in dispute, which did not include victimisation. The tribunal concluded that:
"Our view of the evidence before us and the statement by Mr Clouden is that his reference to victimisation was only ever intended to be in the general sense (of unfair treatment and persecution generally) and not the specific allegation upon which Mr Uduje now seeks to have included within the Applicants claim.
36. As a finding of fact we come to the view that Mr Clouden intended his application to be an application relating only to his lost pay. We do not take the view that the interests of justice accord with our allowing him to place a wider interpretation upon the wording of his letter so as to validate a late and hitherto unparticularised or specified claim against the Respondent. For these reasons it follows we are not attracted to Mr Uduje's amendment request and which we refuse.40. Both parties agree that there is little to be gained in our continuing to hear the Applicants claim for unauthorised deduction from wages because that claim is inextricably linked with the race discrimination claim."The only claim which remained was the complaint contained in the first application that the employer "undertook to provide me with alternative employment and is now refusing to honour its undertaking." The tribunal allowed that claim to proceed though on the condition that the applicant pay £150 as a condition of being allowed to pursue the claim and that the claim would be heard before a differently constituted tribunal.The applicant's grounds of appeal, in summary, were that the tribunal failed to consider correctly the question of complaints which constitute conduct of a continuing nature; that the tribunal erred in its consideration of what was just and equitable or reasonably practicable in the circumstances of the case by taking into account irrelevant matters such as the applicant's reliability as a witness and failed to take into account relevant matters such as whether the employer was prejudiced in allowing the claims to proceed in the light of existing and timeous complaints; and that the tribunal failed to consider the claim of victimisation in accordance with legal authority.On the matter of discrimination which amounted to continuing conduct, the relevant legal sections are 68(7)(b) of the Race Relations Act 1976 and 76(6)(b) of the Sex Discrimination Act 1975 which read, "any act extending over a period shall be treated as done at the end of the period."It was submitted on behalf of the applicant that he had been subjected to a detectable regime of discrimination which extended over a period of time. In particular the disciplinary process to which he was subjected, his redeployee status, and his exclusion from job opportunities were cited as examples of discriminatory policies, which were not acts to be looked at in isolation, but as part of continuing conduct. Alternatively Mr Uduje submitted that such a succession of specific instances could indicate the existence of a practice which could constitute an act extending over a period as in Owusu v London Fire & Civil Defence Authority [1992] ICR 650 . In that case it was held that the failure by the Authority to promote or shortlist the applicant were specific one-off instances which did not amount to acts over a period. But the Authority's repeated failure to upgrade the applicant or offer the opportunity to act at a higher grade could amount to a continuing act of discrimination.In its findings on this matter the tribunal appears to have relied upon the authority of Barclays Bank plc v Kapur [1989] IRLR 387 which held that a distinction could be drawn between the continuance of the discriminatory act itself and the continuance of the consequences of a discriminatory act. Only in the former case would the act be treated as extending over a period. The tribunal concluded that the particular incidents raised, of the deletion of the applicant's post and the events of the 9 th and 11 th January 1996, were isolated acts. Furthermore, the Respondents submitted that, in effect, the applicant was complaining about a general climate of discrimination which was manifested in the acts of which he complained and that would be insufficient to pass the Kapur test.Both parties acknowledged that in order for this Court to find that the tribunal had erred in its approach to this case, a heavy burden was placed on the party seeking to show error. For an appeal to be successful it would have to be shown that the tribunal demonstrably took a wrong approach so that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it. In relation to application 24953/96 it seems to us that paragraphs 23 and 24 of the Tribunal's reasoning does show that the tribunal has failed to apply the correct test as to whether time should be extended. What is required is an analysis of whether it would be just and equitable to extend time. That reuqires a balancing exercise to be made of the relative injustices. That is, the injustice to the applicant if an extension is not granted against the injustice to the respondents if time were extended. In addition the court has its own interests in the speed at which complaints are made and progressed through the tribunals. Instead, the tribunal, perhaps because of the way the arguments were presented, focussed their attention on whether acts were continuing or one-off. It is clear from the terms of the IT1 that the applicant is saying that he is the victim of a campaign of discrimination and victimisation throughout his employment. In paragraph 24 of their decision they go straight on from saying that the application was out of time to a conclusion that the claim had to be dismissed without carrying out the necessary weighing process or apparently exercising the discretion which Parliament has provided. On this ground alone we allow the appeal in relation to this claim. The remainder of the appeal is dismissed."