MR K TYAGI v BBC WORLD SERVICE [2000] UKEAT 726_99_0304
[4]APPEARANCES For the Appellant IN PERSON. For the Respondent MR A GEORGE (of Counsel) Instructed by: Litigation Department BBC White City 201 Wood Lane London W12 7TS JUDGE COLLINS: Mr Tyagi has seized upon those passages in an attempt to extract a general proposition that wherever there is a discriminatory policy, any person who might be affected by that policy is discriminated against for as long as the policy exists. Closer examination of those authorities shows that they do not lend support to this argument. In Auld LJ's judgment he refers at paragraph 27 to a decision of Bristow J. in this tribunal in Amiss v Inner London Education Authority [1977] ICR 308 where he says: - "So, if the employers operated a rule that the position of Head of Department was open to men only, for so long as the rule was in operation there would be a continuing discrimination and anyone considering herself to be have been discriminated against because of the rule, would have three months from the time when the rule was aggravated within which to bring the complaint." Auld LJ's comment on that decision is: - "Although Bristow J concluded that passage by referring to a limitation period of three months from the aggregation of the policy, I do not think that he was suggesting that a complaint could rely on the continuance of a policy long after she had left her employment. In the case of such a policy still in existence of that date, time runs from then." "The rule of the scheme constituted a discriminatory act extending over the period of her employment and is therefore to be treated as having have been done at the end of her employment." "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. .... '' then a number of factual situations are set out. It is easy to see in the case of an employee that an employer's policy may have a continuing discriminatory effect. In the case of someone who is not an employee and has to rely on s.4(1), the case for racial discrimination has to depend upon the arrangements which are made for the purpose of determining who should have employment, the terms on which that employment is offered or a refusal or omission to offer that employment. These are not continuing acts. These are one-off acts and therefore the line of authority which Mr Tyagi asks to follow simply has no application. It might have been different, although we express no concluded opinion on the point, if Mr Tyagi had continued to be an employee of the BBC throughout the relevant period because in that case, Mr Tyagi might have been able to rely on S.4(2)(b) discrimination in the way the employer afforded him access to opportunities for promotion, transfer or training, but that is not the case with which we are concerned today. So that in our judgment the first ground of appeal fails. "This is not a case where he merely overlooked the idea of bringing a complaint. He had deliberately chosen not to bring the claim in time."