THE COMMISSIONER OF POLICE OF THE METROPOLIS v MISS J HENDRICKS [2001] UKEAT 614_01_0511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 614_01_0511Case No Appeal No. EAT/614/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE COMMISSIONER OF POLICE OF THE METROPOLISAPPELLANTMISS J HENDRICKSRESPONDENT
Before
His Honour Judge D SerotaDate 5 November 2001
[1]APPEARANCES For the Appellant JOHN CAVANAGH QC (of Counsel) Instructed by: Metropolitan Police Service Solicitor's Dept New Scotland Yard Broadway London SW1H OBG For the Respondent JOHN HENDY QC (of Counsel) Instructed by: Messrs Schilling & Lom Solicitors 72-74 Royalty House Dean Street London W1D 3TL JUDGE D SEROTA QC This is an appeal by the Commissioner of Police of the Metropolis (to whom we shall refer as the Commissioner of Police) from a Decision of the Employment Tribunal at London Central that was promulgated on 11 April 2001. On an interlocutory application by the Commissioner of Police to determine certain preliminary issues, the Employment Tribunal held:(i) It had jurisdiction to entertain the claims of the Applicant (to whom we shall refer as Ms Hendricks) in respect of her claims of race and sex discrimination.(ii) If wrong, in entertaining jurisdiction, and if the applications were out of time, the Employment Tribunal decided it would not be just and equitable to extend time for presenting the Originating Application.(iii) The Employment Tribunal had jurisdiction in relation to a complaint by Ms Hendricks of both sex and race discrimination arising out of an assault charge brought against her in September 1998 (assuming it had jurisdiction under (i) above.[2]The Commissioner of Police appeals against the first of those findings, while Ms Hendricks appeals against the second, by way of cross-appeal. There is no appeal in relation to the third finding, and we say no more about it. We note that the Employment Tribunal heard evidence from Ms Hendricks and a witness called by her, Detective Inspector David Michael. The Employment Tribunal also heard evidence of a witness called by the Commissioner of Police, Sergeant Mackenzie. An issue arises which we shall determine later as to whether the Decision of the Employment Tribunal on its jurisdiction was based on that evidence or upon the allegations made by Ms Hendricks in her Originating Applications and Particulars. It is submitted by the Commissioner of Police that the evidence that was called at the Employment Tribunal related almost exclusively to the issue of whether it was just and equitable to extend time for presenting the Originating Application.[3]We now set out something of the background to these proceedings. Ms Hendricks, who is black, is a serving police officer, although currently on extended sick leave. She joined the Metropolitan Police on 25 January 1987. She now complains of having been the victim of both sex and race discrimination, virtually from the date she joined the service. We shall refer to her allegations shortly. The Employment Tribunal found that at least from February 1996, she had received advice from competent advisers on employment law matters relating to her complaints. In September 1998, Ms Hendricks was accused of assaulting another police constable, and on 15 March 1999 she learned that she would be summonsed for assault. She immediately went on sick leave, suffering from stress and as we have already mentioned, she remains on extended sick leave. We note that she was acquitted of the assault charge on 18 September 1999. She maintains that the bringing of the prosecution was a discriminatory act based on her race and gender. As we have already noted, the Employment Tribunal held that it had jurisdiction to entertain that complaint.[4]On 8 March 2000, Ms Hendricks presented her Originating Application based on sex and race discrimination. It is common ground that the Originating Application makes no specific allegation of any discriminatory conduct within the three months preceding 8 March. On 1 April 2000, Ms Hendricks went off pay. She had previously been on full pay, although it may be that the Commissioner of Police would have been justified in placing her on half pay. Ms Hendricks maintains that the decision to take her off pay amounted to victimisation and she presented a further Originating Application on 17 July 2000, alleging that that was the case. There is no dispute that this application was made in time.[5]We now refer briefly to the allegations made by Ms Hendricks. The allegations in the Originating Application are brief, but they are supplemented by a statement dated 10 April 2000. The Employment Tribunal gave directions on 17 October 2000 which included a direction that Ms Hendricks supply Further and Better Particulars which she did, on 17 November 2000. She was ordered to supply Further and Better Particulars of her Originating Application alleging victimisation by an Order of the Employment Tribunal of 15 August 2000, and Further and Better Particulars were supplied, dated 24 August 2000. The Employment Tribunal and this Tribunal have considered those allegations. There are approximately ninety nine specific allegations going back to 1989. Most of the allegations relate to the period 1989 - 1994. The allegations concern approximately fifty police officers and at least three different workplaces. The last allegation in time relates to the decision in April 2000 to take Ms Hendricks off pay. There is no issue, as we have said, that the second Originating Application dated 17 July 2000 is within time.[6]The allegations range from those in which it is clear on the face of the allegation that Ms Hendricks claims she was treated in a discriminatory way because of her sex or race. In many others, however, she claims that she was treated in an unfavourable way without any overt reference to her race or gender, and in respect of which she asserts her belief that she was treated less favourably than white or male comparators because of her race or gender.[7]Most surprisingly, in her pleadings, there is little attempt to link or draw together the ninety nine or so different allegations over the thirteen year period in four different workplaces. In further particulars of her victimisation complaint [no 22204224/2000] dated 24 August 2000 and served in accordance with an order of the Employment Tribunal dated 15 August 2000, Ms Hendricks asserts in paragraph 3:
"Throughout her career with the MPS the Applicant has been subject to less favourable treatment by reason of her race and sex. It is submitted that the following history of persistent and continuing discriminatory treatment is the background to the current complaint."
In amended particulars of complaint served in accordance with an order of the Employment Tribunal of 17 October 2000 Ms Hendricks states:
"The Applicant complains of a continuing history of less favourable treatment on grounds of her sex and race contrary to the Sex Discrimination Act 1975, the Race Relations Act 1976, and denial of rights under Article 5(1) of the Equal Treatment Directive No 76/207 culminating in the withdrawal of pay, which is the subject of complaint no 22204224/2000"
There is no allegation of any discriminatory policy. There are no allegations that other members of ethnic minorities or other women have been the victims of the policy that Ms Hendricks asserted to the Employment Tribunal and to this Tribunal, which led to her suffering discrimination. In our opinion, however, pleadings in Employment Tribunals are intended to be informal and it would be wholly wrong to consider this case on what might be described as a pleading point, and we shall determine the issues raised by reference to their substance rather than their form.[8]We now turn to consider the Decision of the Employment Tribunal. Subject to its power to extend time for presenting an Originating Application, where in all the circumstances it is just and equitable to do so, an applicant must present a claim for race or sex discrimination within three months of the act complained of. We refer to section 76 of the Sex Discrimination Act 1975 which is headed "Period within which proceedings to be brought" "(1) An [employment tribunal] shall not consider a complaint under section 63 [which entitles a complainant to present a complaint of sex discrimination to an Employment Tribunal] unless it is presented to the tribunal before the end of [ -(a) the period of three months beginning when the act complained of was done ……" "(5)….a 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. (6) 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. and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires, within which he might reasonably have been expected to do the omitted act if it was to be done."[9]Section 68 of the Race Relations Act 1976 makes provision in similar language in relation to the time limits for making complaints to an Employment Tribunal in respect of race discrimination.[10]Section 41 of the Sex Discrimination Act (the language of which is mirrored in section 32 of the Race Relations Act ) has the effect of making the Commissioner of the Police vicariously responsible for acts of other police constables and employees.[11]We have already mentioned that no specific act of discrimination is relied upon by Ms Hendricks in her Originating Application of 8 March 2000 within three months of the presentation of her complaint. She had indeed been on extended sick leave for almost a year prior to the presentation of that Originating Application. The Commissioner of Police sought to argue that as the Originating Application contained no allegation of discriminatory conduct committed within three months of the presentation of the Originating Application, the Employment Tribunal had no jurisdiction to entertain the complaint. The case as put by Ms Hendricks to the Employment Tribunal, by her Counsel, Ms Genn, is to be found at paragraph 8 of the Decision. Ms Genn submitted:
"that all the acts and omissions about which the Applicant complains are part of "a seamless whole of continual and continuing less favourable treatment by the Respondents' officers," that is to say, a "continuing act" of race discrimination and/or sex discrimination; so, they should, in her submission, by virtue of section 76(6)(b) of the Act of 1975 and section 68(7)(b) of the Act of 1976, be treated as all done at the end of the period over which they extended, namely, up to April 2000; and therefore the complaints in respect of all of them have been presented in time."
The case was put on the basis that there was a "regime or prevailing way of life" in the Metropolitan Police which resulted in Ms Hendricks being discriminated against on the grounds of her sex and race. No other specific policy was advanced before the Employment Tribunal. In submissions to the Employment Tribunal and to the Employment Appeal Tribunal it was submitted that Ms Hendricks' allegations revealed a prima facie case that the Metropolitan Police was guilty of institutional racism.[12]We refer to paragraphs 17 and 18 of the Decision in which the submissions of Ms Genn are set out:
"17 The cumulative effect of the continuous less favourable treatment to which the Applicant was subjected (which at this stage has to be looked at on the face of the untested allegations) demonstrates, in her submission, a regime - or prevailing way of life - that exists within the Metropolitan Police Service. 18 It is the Applicant's case that she has been subjected to discriminatory acts on a regular and continuing basis throughout her career in the Service; that the persistent nature of the less favourable treatment to which she has been subjected constitutes a discriminatory act of a continuing nature; and moreover, given the claimed involvement of senior officers (which at this stage has to be assumed to have taken place) in either themselves committing discriminatory acts or omitting to take steps to relieve the Applicant from the discriminatory behaviour of her colleagues demonstrates the very essence of a policy or regime which is continuing. In this regard she cites the decision in Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, where it was held that a succession of specific instances can indicate the existence of a practice, which, in turn, can constitute a continuing act extending over a period."
At paragraph 20 the Employment Tribunal records a further submission by Ms Genn:
"She further submits that in any event time has not started to run against the Applicant because the Respondent's policy of treating officers who are female and/or from ethnic minority backgrounds less favourably than white male ones remains in force and the Applicant is still a serving officer"
. The gist of the Decision of the Employment Tribunal is to be found at paragraphs 24 and 25. "24 We recognise that, when explanations are given by the Respondent, it may be shown that there is no link between one incident and another cited by the Applicant and that there were different explanations for each, so that no policy, rule or practice is established. We do, however, have to make our decision on the basis of the facts as alleged by the Applicant, even though they are as yet untested; that is acknowledged in paragraph 20 of the decision in Owusu ……… We have therefore to determine whether the Applicant has made out a prima facie case that there was a continuing act in the form of a policy, rule or practice maintained by the Respondent. 25. In our view, on the basis of the Applicant's as yet untested allegations, a policy, rule or practice could be detected as a result of which female officers and officers came [sic]from ethnic minorities, were treated less favourably than white male officers. In particular, we consider that her allegations of senior officers persisting in either committing discriminatory acts against her or omitting to take steps to relieve her from the discriminatory acts or omissions of her colleagues, provide the foundation of a case that there possibly was such a policy, rule or practice."[13]Some further understanding of the reasoning of the Employment Tribunal may be derived from paragraphs 29 and 30 of the Decision in which they consider the assault charge complaint. Ms Hendricks submitted that the acts of officers setting the prosecution in motion, and giving evidence against her were conceivably part of a practice on the part of the Commissioner of Police which resulted in less favourable treatment of female officers and those from ethnic minorities. The Employment Tribunal said this:
"30 While recognising that, when both sides' evidence is adduced in full, it may be held that the bringing of the complaint of assault, etc was not part of such a practice, nevertheless, for present purposes, we prefer the argument submitted by Miss Genn….."
[14]The Commissioner of Police has pointed out the untoward consequences that may follow from the Decision of the Employment Tribunal. The Commissioner of Police will be faced with a trial lasting over three months, with approximately one hundred witnesses, in which it will be necessary to examine events going back over twelve years. There will obviously be difficulties in tracing witnesses and finding documents; recollections are bound to be impaired. Such a process will cause enormous expense. Mr Cavanagh QC also submitted that once such a general policy of discrimination is raised, any employee may have a claim even though incidents are isolated and unconnected and occurred many years ago, provided he or she remains in employment, and even if there were no specific policy aimed directly at the individual concerned. The result, it was submitted, would be to drive a coach and horses through the relatively short three month time limits set out in the Sex Discrimination Act and Race Relations Act for the presentation of complaints. It seems to us that there are other considerations. Cases such as Ms Hendricks' would place further pressure on Employment Tribunals which are already heavily burdened and would lead to lengthy hearings and considerable expense to respondents.[15]On the other hand Mr Hendy QC, for Ms Hendricks, pointed out that it is not sufficient for an applicant to simply prove the existence of a policy. The applicant must also show the policy was applied to his or her detriment. Mr Hendy was sufficiently realistic, however, to recognise the inconveniences of the decision. However, as he pointed out we must apply the law as we find it even if the results may be inconvenience and a significant evasion of statutory time limits. Mr Hendy went on to submit that if there was a policy which continued, it was irrelevant that an applicant had been affected, say twenty years ago. Mr Hendy submitted that it was possible Parliament did not intend such an event, but that is what the law permits, so long as the policy continues and the applicant remains an employee. The argument, he acknowledged, might be unattractive, but that was irrelevant. We agree with Mr Hendy in this respect.[16]During the course of submissions when Mr Cavanagh was addressing us on the length of the hearing, we suggested that the position might not be as bad as the Commissioner of Police feared. We refer to the overriding objective, and in particular the obligation placed on Employment Tribunals to deal with cases in ways appropriate to the complexity of the issues and to deal with them expeditiously and fairly. We suggested that an Employment Tribunal should use its new case management powers to concentrate on material issues, and to cut down evidence so as to avoid a general trawl through a ten year history. Mr Cavanagh submitted that an Employment Tribunal could not robustly limit the scope of evidence in a discrimination case; these always required sensitive treatment, and the fullest rein being given to applicants. We, however, are of the view that the new regime encourages effective case management and we would expect an Employment Tribunal in a case such as this to limit the issues and place limitations on the evidence it will receive. However, we recognise clearly the inconvenience and expense to all concerned that may be seen to arise from the decision of the Employment Tribunal.[17]The inconvenience to the Commissioner of Police and to other employers, who might be faced with similar claims are obvious. However, we cannot be deflected from applying the law as we find it by the kind of consideration that has been advanced by Mr Cavanagh. If the claimant is entitled to present her case as found by the Employment Tribunal, then so be it, even if this causes major inconvenience for the Commissioner of Police and indeed, to the Employment Tribunal.[18]We now turn to consider the submissions made by Mr Cavanagh QC on behalf of the Commissioner of Police. Mr Cavanagh submitted that if Ms Hendricks' application were to have been presented in time, she had to prove that she suffered discrimination as the result of an "act extending over a period …" as provided in section 76(6)(b) of the Sex Discrimination Act 1975 and section 68(7)b) of the Race Relations Act 1976. Mr Cavanagh submitted that the policy relied upon as constituting the "act extending over a period" by the Employment Tribunal, and as contended for by Ms Hendricks was too vague and general to constitute such an act. He submitted that a "policy" must be co-ordinated and concerted and that a series of unconnected acts by different people in different parts of an organisation as large as the Metropolitan Police could not amount to such an act. It was submitted that the Employment Tribunal were in error by concentrating on looking for a "policy", and as a result their attention had been deflected from examining the specific allegations made by Ms Hendricks. He reminded us that Ms Hendricks was on extended sick leave, so could not participate, so to speak, as a victim of a practice as at the date she presented her Originating Application on 3 March 2000. Mr Cavanagh submitted that the fact that there was no allegation in that Originating Application of an act of discriminatory conduct, within three months of its presentation, showed the danger of treating the Applicant as a victim of a continuing act or what was described as a prevailing way of life or culture. The approach of the Employment Tribunal, it was submitted, shifted the focus away from an analysis of the specific incidents relied upon by Ms Hendricks, and cast the burden on the Commissioner of Police to deal with allegations going back over many years.[19]The essence of the case put forward by the Commissioner of Police was that the Decision in this case went far beyond other reported cases or the guidance offered by authorities. Isolated incidents do not make a policy. Otherwise in any case an applicant could always allege a prevailing way of life, of which he or she had been a victim, and thus evade statutory time limits. Mr Cavanagh submitted that all authorities considering what was comprehended by the phrase an "act extending over a period" were concerned with a specific or concrete policy or rule. Mr Cavanagh submitted that Ms Hendricks did not seek to define the "act extending over a period" other than by reference to a "regime or prevailing way of life", although references had been made in submissions to institutional racism. He further pointed out that no specific policy had been found by the Employment Tribunal. The reasoning of the Employment Tribunal was criticised as circular; namely because there were a lot of allegations, there must be a policy. However no real thought had been given to identifying what that policy was. In answer to a question from Mr Sanderson, Mr Cavanagh submitted that policy might be defined as some form of unwritten rule. Policy required a guiding hand, whereas unrelated incidents have no such hand of guidance or control.[20]Mr Hendy firstly submitted that we should treat this appeal as essentially one of fact. He submitted that the Tribunal had heard evidence over some two days, and their conclusion was based on both evidence as well as the pleaded allegations. He accordingly submitted that we could not review the Decision of the Employment Tribunal unless it was perverse or unsupported by the evidence.[21]It is convenient to deal with this particular submission now. It is true that evidence was called, but it is also true that that evidence went primarily to the issue of whether it was just and equitable for time to be extended. If the evidence strayed beyond that, it only did so to a minor extent, and in our view, probably did so impermissibly; It is quite clear to us that the Employment Tribunal adopted the correct approach as is apparent from paragraphs 17 and 24 of their Decision. They considered the question of whether an act extending over a period had been made out by reference to "untested allegations" (paragraph 17). In paragraph 24 they explicitly made their decision:
"on the basis of the facts as alleged by the Applicant, even though they are as yet untested;"
We are satisfied that the Employment Tribunal approached the matter correctly, and properly directed themselves they examined the allegations and assumed them to have been correct. Accordingly the issue raised before us is properly one of law and not an appeal on a question of fact.[22]Mr Hendy submitted that the approach and Decision of the Employment Tribunal was correct.[23]Paragraph 18 of his Skeleton Argument submitted:
"The Employment Tribunal adopted the correct approach by requiring the Respondent to demonstrate 3 elements:- (a) the existence of a policy, regime, rule or practice. The nomenclature is insignificant so long as there exists an identifiable state of affairs in accordance with which the discriminatory acts were committed; (b) the occurrence of acts of discrimination; (c) the existence of a connection between each alleged act of discrimination to link those acts to the policy, regime, rule or practice."
[24]Mr Hendy stressed that a continuing act could arise if a practice was maintained which, when followed or applied, resulted in acts of discrimination being committed. He of course accepted that some link had to be shown between various acts which might be regarded as constituting an "act extending over a period", and what might colloquially be described as "one-offs". The practice must be discriminatory, and must result in discrimination to the applicant. He also drew attention to the authorities, to which we will refer shortly, on the need to examine the totality of acts complained of to see if there was a continuing act. In Mr Hendy's submission, the Employment Tribunal correctly corrected itself as to the need to examine the totality of the acts complained of. The fallacy, he submitted in the submissions of the Commissioner of Police that the policy was too vague or general, was that a policy could be specific or general, but was nonetheless a policy. He gave as an example a hypothetical case in which the Commissioner of Police had said to senior officers "Discriminate in any way you can against women and ethnic minorities." If such had occurred, that would be a policy of the Metropolitan Police and he went on to submit that that was in fact the policy of which Ms Hendricks was entitled to claim. There was a generalised policy of discrimination against women and ethnic minorities in any way. He drew our attention to the Stephen Lawrence enquiry by chaired by Sir William Macpherson of Cluny, in which in paragraph 6.34 the following definition was given of institutional racism:
"The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people."
Mr Hendy drew our attention also to the decision of the Court of Appeal in Anya v University of Oxford [2001] ICR 847 . The Court of Appeal made clear that Employment Tribunals should be aware that very little direct discrimination is today overt or even deliberate. The authorities told tribunals and courts that what they should look for in order to give effect to the legislation are indicators from a time before or after the particular decision, which may demonstrate that an ostensibly fair minded decision was, or was equally not affected by racial bias; see page 855 H, 856A at paragraph 11.[25]Mr Hendy submitted that in this case Ms Hendricks had established a prima facie case that there was a policy, rule, practice, or regime, or climate which resulted in a state of affairs that was permitted to exist within the Metropolitan Police in which a range of discriminatory measures were taken against women and ethnic minorities, and that it was immaterial (although it might be of relevance) if the range of those measures was deliberate or general.[26]We have considered a number of authorities which have considered the construction of the phrase "act extending over a period". We firstly considered Calder v James Finlay Corporation Ltd [1989] ICR 157 , a decision of the Employment Appeal Tribunal. Mrs Calder's complaint was that she was discriminated against on the grounds of her sex because her employer's mortgage scheme was available only to males. It was held that while she remained in employment, and that rule continued, she was suffering a continuing detriment. Browne-Wilkinson J had this to say, page 159 F:
"It follows, in our judgment, that so long as the applicant remained in the employment of these employers there was a continuing discrimination against her. Alternatively it could be said that so long as her employment continued, the employers were subjecting her to "any other detriment" within section 6(2)(b). Once this conclusion is reached, in our judgment it follows that the case does fall within section 76(6)(b). The rule of the scheme constituted a discriminatory act extending over the period of her employment and is therefore to be treated as having been done at the end of her employment. Accordingly her application was within time."
[27]In Barclays Bank PLC v Kapur [1991] ICR 208 , employers had a rule (and it may also have been a term in the contract of employment) that employees who were not European did not have foreign service counted as pensionable employment, whereas European expatriates were permitted to treat service with other banks towards the computation of their pensions. Lord Griffiths at page 214 referred to the decision of the Employment Appeal Tribunal in the case of Amies v Inner London Education Authority [1977] ICR 308 , given by Bristow J:
"Like any other discrimination by act or omission, the failure to appoint her, and the appointment of him, must have continuing consequences. She is not the head of the department; he has been ever since 13 October 1975. But it is the consequences of the appointment which are the continuing element in the situation, not the appointment itself…..So, if the employers operated a rule that the position of head of department was open to men only, for as long as the rule was in operation there would be a continuing discrimination and anyone considering herself to have been discriminated against because of the rule would have three months from the time when the rule was abrogated within which to bring the complaint. In contrast, in the applicant's case clearly the time runs from the date of appointment of her male rival. There was no continuing rule which prevented her appointment. It is the omission to appoint her and the appointment of him which is the subject of her complaint."
Lord Griffiths continued at page 215:
"In the present case the Court of Appeal were in my view right to approve these two decisions [Amies v Inner London Education Authority and Calder v James Finlay Corporation Ltd] and to classify the pension provisions as a continuing act lasting throughout the period of employment and so governed by subsection (7)(b). The matter can be further tested by taking the case of an employer who before the Act was passed paid lower wages to his coloured employees than to his white employees. Once the Act came into force the employer would be guilty of racial discrimination if he did not pay the same wages to both coloured and white employees. If he continued to pay lower wages to the coloured employees it would be a continuing act lasting throughout the period of a coloured employee's employment within the meaning of subsection (7)(b). A man works not only for his current wage but also for his pension and to require him to work on less favourable terms as to pension is as much a continuing act as to require him to work for lower current wages."
[28]In Littlewoods Organisation plc v Traynor [1993] IRLR 154 the applicant had complained of racial abuse by his supervisor. The employer agreed to certain remedial measures, but had failed to carry them out, and conditions remained the same. The Employment Appeal Tribunal held that the complaint was made within time, notwithstanding that the last specific incident of which complaint was made was more than three months for the presentation of the Originating Application. The employer's failure to implement the course of remedial measures constituted a continuing act, and meant that the employer had allowed a discriminatory situation to continue. At paragraph 11 of their decision, the Employment Appeal Tribunal, chaired by Lord Coulsfield, has this to say:
"The decision whether there is a single act having continuing consequences or a continuing act is one that must involve consideration of the particular circumstances. It was submitted to us that the distinction between cases such as Kapur and the present case was that in Kapur there was a continuing omission to pay a proper wage during every week in which the employment continued, whereas there was no such continuing act in the present case. In our view, however, the situation in the present case can properly be described in the same manner as Lord Griffiths expressed the situation in Kapur . So long as the remedial measures which had been agreed on in November 1989 were not actually taken, a situation involving racial discrimination continued and allowing that situation to continue amounted to a continuing act."
[29]We next considered Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 . This was a particularly significant case because it was relied upon by the Employment Tribunal, and gives a helpful definition or explanation of the phrase "act extending over a period" that has been approved by the Court of Appeal. In this case Mr Owusu had a number of complaints, which he said amounted to racial discrimination against his employers. These included failures to permit him to act up, failure to grant him promotion and failure to put him on shortlists for jobs that he sought. He submitted that the various acts of discrimination he alleged, were a "seamless whole". It seems to us to be of significance that insofar as the complaints about failure to promote and shortlist were concerned, the Employment Appeal Tribunal came to the conclusion that they were "undoubtedly" specific instances which occurred outside the three month period. The judgment of the Employment Appeal Tribunal, given by Mummery J, contains the following at paragraph 21:
"The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of Mr Owusu. It would be a matter of evidence for the tribunal as to whether such a practice as is alleged in Mr Kibling's argument in fact exists. It may be that, when explanations are given by the respondents, it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice."
We are of the opinion that the decision in Owusu points to the importance of an Employment Tribunal scrutinising allegations made with care to see whether a continuing act of discrimination can be inferred and if so, what that continuing act might be.[30]In Rovenska v General Medical Council [1998] ICR 85 the Court of Appeal considered the case in which it was alleged that a requirement of the GMC that certain foreign doctors had to satisfy a language test could amount to a continuing act of discrimination. In the particular complaint a number of instances were referred to which fell outside the three month time limit. In the Employment Appeal Tribunal Mummery J had re-stated what he had said in Owusu in the passage we have quoted, but re-formulated the passage "policy, rule or practice" to read instead "rule, scheme, practice or policy". Brooke LJ had this to say at page 92:
"In those cases the discriminatory act complained of is not a one-off act of refusal: it arises out of the way in which the employer affords his or her employees access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or out of the employer refusing or deliberately omitting to afford the employees access to them. In these circumstances the courts have held that if an employer adopts a policy which means that a black employee or a female employee is inevitably barred from access to valuable benefits, this is a continuing act of discrimination against employees who fall into these categories until the offending policy is abrogated."
In page 95 h, he had this to say:
"In my judgment it is not necessary to resolve the question of the proper interpretation of section 12(1)(a) of the Act of 1976 in the present case. If the regime which the GMC had selected for its exemptions policy was inherently discriminatory, as the applicant maintained, then on every occasion that it refused to allow her limited registration without first taking the PLAB test it would be committing an act of unlawful discrimination contrary to section 12(1)(b) of the Act."
We note that in this case there was a clearly defined rule or policy described as a "regime" and the complaint was only in relation to this clearly defined rule or policy.[31]In Cast v Croydon College [1998] ICR 500 the Court of Appeal considered a case in which there had been a deliberate policy not to allow the applicant, a female, to work part-time or job-share. The issue in that case was whether the initial refusal which was outside the three month time limit was continuing. The Court of Appeal had this to say, at page 508 in the judgment of Auld LJ:
"As to a "one-off" discriminatory act, it is important to keep in mind that it may be an application of an established discriminatory policy or it may be inherently discriminatory regardless of any such policy. If the complaint is of a specific discriminatory act the fact that it may have been an application of an established policy adds nothing for this purpose. The starting point is, therefore, to determine what is the specific act of which complaint is made. The fact that a specific act out of time may have continuing consequences within time does not make it an act extending over a period: …….. As to an act extending over a period, the authorities make clear - at least in the case of discrimination in the field of employment under section 6 of the Act of 1975 and section 4 of the Race Relations Act 1976 ……….- that is the existence of a policy or regime, not a specific act of an employer triggering its application to the complainant, that matters. A moment's consideration of the concluding words of section 76(6)(b) of the Act of 1975 - "any act extending over a period shall be treated as done at the end of that period" (my emphasis) - shows that that must be so. If the "act extending over a period" required a specific act by an employer to give it effect there would be no need or room to "treat …..it as done at the end of the period."….. There may be a policy or regime for this purpose even though it is not of a formal nature or expressed in writing and it may be confined to a particular post or role: see for example Owusu's case and per Lord Griffiths in Barclays Bank v Karpur ……"
[32]In the case of Dean v London Borough of Islington [unreported] the decision of the Employment Appeal Tribunal, being handed down on 1 December 1999, the Employment Appeal Tribunal accepted a submission that a grievance procedure, decided by different people at different times, could not amount to an act extending over a period. In Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69 the applicant who was black worked for the respondent as a welder from 1989 to 1998. At some point in time he was transferred to the tube shop in which racial abuse was widespread, and which the employer failed to check. In 1996 he was told by his training instructor one Moore, that he had failed a test as he, Moore, did not want someone of his racial origins in the welding shop. When a redundancy situation arose in early 1998 Moore had become the shop foreman and the applicant believed that Moore would participate in the selection process, so he resigned on 1 May 1998, claiming he had been constructively dismissed. He presented his claim for racial discrimination on 31 July 1998. The Employment Tribunal found that the claim was within time as the effect of Moore's abuse continued and had direct impact on the decision of the applicant to resign. There were two issues in the case: firstly, whether a constructive dismissal was a "dismissal" within the meaning of section 4(2)(ii) of the Race Relations Act . The Employment Appeal Tribunal, having found that a constructive dismissal was a dismissal within the meaning of that section went on to consider the second issue, namely, whether Mr Burton's complaint was of a continuing act. At one time Mr Cavanagh was minded to submit that the decision of the Employment Appeal Tribunal in this regard was obiter but he wisely conceded that this was not so. The decision of the Employment Appeal Tribunal was given by Keene J. At paragraph 13 he said this:
"This was a case of an accumulation of acts and events demonstrating a repudiation by the appellant of the contract of employment and that accumulation should be seen as continuing until the time of the respondent's resignation. Miss Williams emphasises the tribunal's findings that at all material times racial abuse was widespread throughout the tube shop, that the appellant company knew about this climate of racial abuse, and that it took no action to check it. That, she submits, provides the context and the links between the individual incidents specifically referred to."
At paragraph 19 the judgment continues:
"19 However, in any event, it is clear that the employment tribunal found in this case that the discriminatory acts amounting to a fundamental breach of contract by the appellant continued up until the time of the respondent's resignation. That can be seen from its acceptance of the submissions of Mr Upton to that effect and from its express findings that at all material times racial abuse was widespread throughout the tube shop and that the effect of the racial abuse in April 1996 by the man who became his foreman in March 1998 was continuing. At no time did the company take any action to prevent the abuse. That failure was a continuing failure. There is no appeal against the finding that there was a climate of racial abuse in the tool shop or that the company was aware of this but did nothing about it. Those are not said to be perverse findings…… 20 In a case where the repudiation of the contract consists of an accumulation of events over a period of time, it would be wrong to seek to isolate individual incidents. The continuing conduct of the employer or its continuing failure to prevent racial abuse and discrimination constitutes what the EAT in Harrold described as the underlying racially discriminatory behaviour, and would bring the 'other detriment' within s.4(2)(c) of the Act. Section 68(7)(b) provides that any act extending over a period shall be treated as done at the end of that period for the purposes of the time limit provision. It follows that it makes no difference whether the three-month period is seen as commencing with the respondent's resignation because that was his acceptance of the repudiation of the contract and hence a constructive dismissal, or with the end of the period of racially discriminatory conduct amounting to repudiation. It makes no difference because it was only the respondent's resignation which brought that latter period to an end."
[33]We note that the mere existence of a climate or regime is not per se a continuing act. It may constitute conduct of employees, for which the employer is vicariously liable. Alternatively, the employer may be liable in respect of the climate or regime if he knows of this climate of abuse and fails to tackle it. The Employment Appeal Tribunal in Derby Specialist Fabrication v Burton also refer to the well-known dicta in Driskel v Peninsular Business Services Ltd [2000] IRLR 151 in relation to the importance of having regard to the impact of totality of successive incidents and not adopting a fragmentary approach to the evidence; see Qureshi v Victoria University of Manchester [unreported] 21 June 1996. The judgment continued at 27:- "We agree with that approach. An employment tribunal in such cases should have regard to the totality of a number of successive incidents, because there may well be a cumulative effect. If looking at them overall as a breach of contract they can be seen to be or inferred to be based on racial grounds, so that the complainant would have been treated differently but for his race, then the repudiation by the employer of the contract of employment is to be treated as racially discriminatory." Mr Cavanagh submitted, in relation to the dicta that we have quoted from, Derby Specialist Fabrication v Burton , that the Employment Appeal Tribunal had departed from previous authorities on the meaning of a continuing act, which were not cited to the EAT. He made good this submission by reference to the report of the case in the Industrial Cases Reports which reveals that the cases of Barclays Bank v Kapur , Owusu v London Fire & Civil Defence Authority , Rovenska v General Medical Council and Cast v London Borough of Croydon were not cited. He went on to submit that the dicta were wrong in principle, as the Employment Appeal Tribunal neither analysed the incidents of racial abuse nor the subject of the policy, but instead referred to a climate of abuse. Mr Cavanagh submitted that a climate was not an act, so could not be a continuing act. In the alternative, Mr Cavanagh submitted that the present case was to be distinguished because the policy in the Derby Specialist Fabrication Ltd v Burton was specific and concrete. There was racial abuse, together with a failure to prevent that racial abuse which took place within a limited part of the employer's works. In the present case the policy contended for is much more vague and unspecific as to time, nature, place and extent.[34]Mr Hendy submits that the dicta are correct. There is no reason why a policy should not be a broad policy, even though the policy identified in that case was not as broad as contended for by Ms Hendricks in the present case. Mr Hendy submitted that if a rule could be an act or if a practice could be regarded as an act, so could a climate. Mr Hendy submitted this was an example of language being used to convey a state of affairs authorised or permitted by the employer. Although Mr Sanderson and Mrs Wilson are inclined to agree with Mr Cavanagh's submissions, we are all of the view that the dicta in Derby Specialist Fabrication case must be read in the context of the case. We do not consider they were intended to set out any new definition of an "act extending over a period" beyond that set out in Owusu and approved by the Court of Appeal in Cast v London Borough of Croydon .[35]We have already determined that the Decision of the Employment Tribunal in this case is one of law and not of fact. Whatever gloss authorities may have put on the phrase "act extending over a period" it is essential to remember that in any case where discrimination is alleged, the applicant bears the burden of proving that such an act has been committed and that he or she must prove that he or she has been the subject of discrimination. In our opinion, in any case in which an applicant complains that he or she is the victim of an "act extending over a period", whether in relation to sex or race discrimination, it is necessary to determine what that act was. In the present case no such act is alleged in the pleadings, and as we have already stated, we do not expect the same formality in pleadings in Employment Tribunals as, for example, under the CPR so the absence of a pleaded case does not concern us. We have noted that the case was put on behalf of Ms Hendricks to the Employment Tribunal on the basis of "a seamless whole of continual and continuing less favourable treatment by the respondent's officers" or by reference to a regime or prevailing way of life. We also drew attention to the submission referred to in paragraph 18 that the Applicant had been subjected to discriminatory acts on a regular and continued basis throughout her career in the service; the persistent nature of the less favourable treatment to which she has been subjected constituted a discriminatory act of a continuing nature. The submission, as we already noted, that the involvement of senior officers in committing acts of discrimination or failing to prevent them, demonstrated the essence of a policy or regime.[36]The nearest one came to a determination by the Employment Tribunal was at paragraph 25 of its Decision in which they refer to a:
"policy, rule or practice …..as a result of which female officers and officers from ethnic minorities were treated much less favourably than white male officers."
The involvement of senior officers in the discriminatory conduct, or the failure to relieve the Applicant from the effects of such discriminatory conduct by colleagues provided:
"the foundation of a case that there possibly was such a policy, rule or practice."
Mr Cavanagh submitted that it was necessary, on the authorities for the Employment Tribunal to find something much more definite and circumscribed.[37]We invited Mr Hendy to say what his case was on the precise nature or definition of the "act extending over a period" upon which he relied in this case. Mr Hendy's response was:
"a generalised policy of discrimination against women and ethnic minorities in any way"
. More particularly, it was a:
"policy, rule, practice, regime or climate which in this case resulted in a state of affairs permitted to exist within the institution in which a range of discriminatory measures were taken; it was immaterial (though it might be relevant) if the range of measures was deliberate or general"
Mr Hendy also submitted that the definition of institutional racism, which we have referred to at paragraph 6.34 of the Enquiry of the Lawrence Report, amounted to such a policy.[38]In our opinion, the Employment Tribunal failed to address the question of what constituted the continuing act upon which the Applicant relied, save, as is apparent, in the most general and somewhat vague terms. There was no real attempt made to identify the "act extending over a period".[39]In our opinion, the allegations made by Ms Hendricks cannot support findings of so broad, general and pervasive a policy as Mr Hendy propounds. A generalised policy of discrimination or permitting discrimination against all women, and all members of ethnic minorities cannot fairly be inferred from the allegations made by Ms Hendricks in this case, although as we note there are some ninety nine specific allegations going back to 1989, involving some fifty police officers and at least three different workplaces. These allegations are all specific to Ms Hendricks. Mr Hendy accepted that it was not necessary to formulate so broad a policy and for his purposes, an "act extending over a period" could be one which was specific to Ms Hendricks. However, no such policy was put forward either to the Employment Tribunal or to the Employment Appeal Tribunal. Although in theory, if such a general practice were adopted, it would amount to a continuing act, it seems to us that one cannot infer that the entire Metropolitan Police Force, over an eleven year period, had adopted or permitted such a practice in respect of all women and members of ethnic minorities by reason of the specific allegations made by Ms Hendricks.[40]We take the view that the Decision of the Employment Tribunal in inferring such a widespread and general practice goes far beyond anything in any other reported case. Generally, an "act extending over a period", as interpreted by previous authority relates to something concrete within defined and limited parameters as to place, extent and time; a practice, rule or policy will generally, as Mr Cavanagh submitted, require some co-ordination or concerted action to link the actions from which such a policy, rule or practice can be inferred. No inference can be drawn if the matters are unconnected. A "practice" requires some consistent course of conduct, or habitual action. Although the Employment Tribunal was right to look at matters in the round, there is still no justification that we could see for the inference of such a generalised vague and ill-defined continuing act, or even the somewhat more tightly drawn, but equally wide, policy, rule, practice, regime or climate, propounded by Mr Hendy. While it is possible that the decision in Derby Specialist Fabrication v Burton goes further than other authorities, as we have noted, the decision needs to be understood in the context of the somewhat more circumscribed facts found in that case.[41]It seems to us that the Employment Tribunal may have fallen into error by concentrating on matters of policy and has been deflected from the attention it should have paid to the specific allegations and to the question of what continuing act could properly be inferred from those allegations.[42]We have already drawn attention to the references made to the definition of the phrase "institutional racism" in the Lawrence Enquiry. The finding of the enquiry was that as regards the public and ethnic minorities the Metropolitan Police might be regarded as institutionally racist. No direct submission was made to the Employment Tribunal or to us that that conclusion could be regarded as evidence or material supporting Ms Hendricks' claim. However, we were left in no doubt that that is a tacit submission that underlay Ms Hendricks' case. The definition of institutional racism, as defined by the Lawrence Report is in any event not co-terminous with the statutory definitions of discrimination in either the Race Relations Act or the Sex Discrimination Act.[43]We have already noted that the Employment Tribunal, in part, relied upon the conduct or omissions of senior officers as evidencing the existence of some policy, but we accept Mr Cavanagh's submissions that that is irrelevant unless a link can be shown between the acts of discrimination alleged, beyond the fact that they all took place while Ms Hendricks was employed by the Metropolitan Police. Something more is needed that could demonstrate the existence of a policy or practice which needs, in our opinion, to be more tightly defined than that determined by the Employment Tribunal, for the reasons we have given.[44]In the circumstances, the appeal must be allowed.[45]We now turn to deal with the cross-appeal. It was submitted to the Employment Tribunal by Ms Hendricks that should the Employment Tribunal have considered her complaints were presented out of time, that it was just and equitable for time to be extended in all the circumstances. The Employment Tribunal having heard substantial evidence, would have rejected Ms Hendricks' case:
"(1) that, at least from February 1996 onwards, there were a great many occasions on which she received advice from competent advisers on employment law matters to the effect that she could present complaints to these Tribunals and was well aware that there was a time limit for so doing, which she chose not to do; and (2) that her delay in presenting makes it much more difficult for the Respondent to counter her allegations than would have been the case had they been presented within the statutory period of three months from the acts or omissions complained of, particularly when the matters relied on go back over so many years."
[46]In Ms Hendricks' Notice of Appeal, it is asserted that no reasonable Employment Tribunal could have so concluded on the following grounds:(i) The Employment Tribunal should have had regard to the fact that Ms Hendricks had received legal advice that her complaints were out of time, and insofar as the assault was concerned, the matter should be consider sub judice .(ii) The Employment Tribunal should have regard to the fact that if she sued her legal advisers she would lose the chance of obtaining a declaration that she had been subject to discrimination.(iii) The Employment Tribunal failed to have sufficient regard to her medical condition as a reason for not bringing the proceedings, including the fact that she was suffering from depression.(iv) The Employment Tribunal should have found that she would have suffered greater prejudice by being deprived of the right to bring the proceedings, than would be suffered by the Commissioner of Police in being compelled to defend them.[47]The matter was put somewhat differently in her Skeleton Argument, and an added ground was set out; that the Employment Tribunal should have taken account of her fear of being ostracised by fellow members of the police had she made the complaint at an earlier stage.[48]Although it might have been helpful for the Tribunal to have set out its factual reasoning in this regard in somewhat greater detail, we are of the opinion, for the same reason as the Employment Appeal Tribunal in Owusu (paragraphs 25 - 30) that sufficient reasons are given by the Employment Tribunal and of the existence of evidence to justify those conclusions. The conclusion of the Employment Tribunal in this regard is essentially one of fact and there is nothing to suggest that they have misdirected themselves. In the circumstances, we also dismiss the cross-appeal.