(1) COUTTS & CO PLC (2) ROYAL BANK OF SCOTLAND v (1) MR PAUL CURE (2) MR PETER FRASER [2004] UKEAT 0395_04_1709

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0395_04_1709Case No Appeal No. UKEAT/0395/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) COUTTS & CO PLC (2) ROYAL BANK OF SCOTLANDAPPELLANT(1) MR PAUL CURE (2) MR PETER FRASERRESPONDENT
Before
His Honour Judge McMullenDate 17 September 2004
[1]APPEARANCES For the Appellant MR BRIAN NAPIER QC (one of Her Majesty's Counsel) Instructed by: Messrs Brodies Solicitors 15 Atholl Crescent Edinburgh EH3 8HA For the Respondent MR OLIVER SEGAL (of Counsel) Instructed by: Messrs Morrish & Co Solicitors 1st Floor Oxford House Oxford Row Leeds LS1 3BE SUMMARY Fixed term employee regulations. Date of act complained of (non-payment of non-contractual bonus) was not the date an intention in principle was enunciated but when the employer decided on the date, detail and application to relevant employees of the bonus. HIS HONOUR JUDGE McMULLEN QC This case is about the time limit for presentation of a complaint by a fixed-term employee of less favourable treatment under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The judgment represents the views of all three members. We will refer to the parties as Applicants and Respondents. Introduction[2]It is an appeal by the Respondents in those proceedings against a Reserved Decision of an Employment Tribunal sitting at London Central. Mr D J Latham, Regional Chairman, over three days and a further three days in chambers, between December 2003 and March 2004, registered with Extended Reasons on 17 March 2004. The Applicants and Respondents were represented respectively by Mr Oliver Segal, of Counsel, and Mr Brian Napier QC, both there and here. The Applicants claimed, so far as is relevant to the appeal, that they had been treated less favourably because they were fixed-term employees, when it came to the allocation to them of a bonus which was paid to comparable permanent employees. The Respondents contended the decision was lawful on the merits, for a number of reasons, none of which is relevant to the appeal, but also took a jurisdiction point that the Applicants were out of time to present their claims.[3]The essential issues had been agreed before the Tribunal. Insofar as those issues survive on appeal, they are(1) Were the Applicants out of time?(2) Were the Applicants, as part of a larger group of workers who were similarly excluded from the bonus, treated less favourably than permanent employees, on the ground that they were fixed-term employees?[4]The Tribunal decided that time began to run for the presentation of the Applicants' complaints on 13 November 2002. Their Originating Applications were presented on 10 and 17 March 2003 and thus they were outside the time limit of three months, provided by the Regulations. However, the Tribunal decided it would exercise its discretion, for it was just and equitable to allow the complaints to proceed. In all respects, the Regulations applied, the claims succeeded and the Tribunal effectively declared the Applicants' rights to an award of £816.27 (Mr Cure) and £892.50 (Mr Fraser), those figures being agreed. The Respondents appeal on the two issues above. Directions sending the appeal to a full hearing were given in chambers by Mr Justice Silber, and for a cross-appeal by the Applicants, which it was not necessary to consider, by His Honour Judge Prophet. The Legislation[5]The Regulations came into force on 1 October 2002 and Regulation 1 includes the following definitions:
" (2) …"fixed-term contract" means a contract of employment that, under its provisions determining how it will terminate in the normal course, will terminate -. (a) on the expiry of a specific term, (b) on the completion of a particular task, or (c) on the occurrence or non-occurrence of any other specific event other than the attainment by the employee of any normal and bona fide retiring age in the establishment for an employee holding the position held by him, and any reference to "fixed-term" shall be construed accordingly; "fixed-term employee" means an employee who is employed under a fixed- term contract; "permanent employee" means an employee who is not employed under a fixed-term contract, and any reference to "permanent employment" shall be construed accordingly; "pro rata principle" means that where a comparable permanent employee receives or is entitled to pay or any other benefit, a fixed-term employee is to receive or be entitled to such proportion of that pay or other benefit as is reasonable in the circumstances having regard to the length of his contract of employment and to the terms on which the pay or other benefit is offered … "
[6]Part 2 of the Regulations deals with "Rights and Remedies". The right of a fixed-term employee is provided by Regulation 3 "3 Less favourable treatment of fixed-term employees (1) A fixed-term employee has the right not to be treated by his employer les favourably than the employer treats a comparable permanent employee - (a) as regards the terms of his contract; or (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. …. (3) The right conferred by paragraph (1) applies only if - (a) the treatment is on the ground that the employee is a fixed-term employee, and (b) the treatment is not justified on objective grounds."[7]The way in which a complaint may be presented is set out in Regulation 7:
"7 Complaints to employment tribunals etc (1) An employee may present a complaint to an employment tribunal that his employer has infringed a right conferred on him by regulatin3, or (subject to regulation 6(5»), regulation 6(2). (2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning- (a) in the case of an alleged infringement of a right conferred by regulation 3(1) or 6(2), with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them; (b) in the case of an alleged infringement of the right conferred by regulation 3(6), with the date, or if more than one the last date, on which other individuals, whether or not employees of the employer, were informed of the vacancy- (3) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. (4) For the purposes of calculating the date of the less favourable treatment or detriment under paragraph (2)(a)- …. (b) a deliberate failure to act contrary to regulation 3 or 6(2) shall be treated as done when it was decided on."
[8]In this case we are concerned with an act, rather than a deliberate failure to act; and with a detriment, rather than a contractual term. The bonus was not contractual. The Regulations thus make unlawful direct but not indirect discrimination, and such discrimination is subject to a defence of justification under Regulation 4. A comparable employee must be engaged in the same, or broadly similar, work: Regulation 2.[9]The Regulations derive from Council Directive 99/70/EC. This Directive includes as an annex a framework agreement between the social partners. The recitals include the following: "(14) The signatory parties … have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships. … (16) …. this Directive limits itself to the minimum required for the attainment of those objectives and does not go beyond what is necessary for that purpose;[10]The purpose of the agreement which is part of the Directive is set out as follows:
"Purpose clause 1) The purpose of this framework agreement is to - (1) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination; (2) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships."
Member states are free to improve upon those provisions (Clause 8). The facts[11]The agreed facts included the following "16 … :(1) The Royal Bank of Scotland ("RBS Group") comprises amongst other businesses the Royal Bank of Scotland plc ("RBS"), National Westminster Bank plc ("NatWest plc") and Coutts & Co ("Coutts").(2) Following the acquisition of the NatWest Bank operation by the Royal Bank of Scotland plc, it was part of the business plan to fully integrate the business of the two banking operations.(3) The Chief Executive of the RBS Group, Fred Goodwin, issued a statement concerning the final timetable for complete integration of the banking operations, on or about 27 April 2001. That statement was published on the intranet site of each of the banks which formed the Group.(4) That statement indicated that a bonus of 5% f basic salary would be paid to permanent staff, upon successful completion of the integration process.(5) A further memorandum from the Chief Executive was posted via the banks Intranet on 13 November 2002. The memorandum was in two parts. The first part took the form of a statement from the Chief Executive confirming that there had been full integration, and that the bonus referred to in the memorandum of 27 April 2001 would be paid with December salaries.(6) The second part of this memorandum was a statement of eligibility.(7) The eligibility criteria excluded certain business groups within the RBS Group. Those eligible were defined as "All permanent staff employed on 13 November 2002, including those on probation or seconded to other areas that do not meet the eligibility criteria". Such employees had to be in the Group's employment on 13 November 2002 and at the payment date in December.(8) Amongst the employee groups excluded from payment were those employees who were "on call or fixed terms contractors on 13 November 2002"(9) Each of the two Applicants (Mr P R Cure and Mr P Fraser) were working for their respective part of the Bank Group under a contract for a fixed term, as at 13 November 2002 and as at 18 December 2002, which was the date on which payment of the bonus was made.(10) Neither of the two Applicants received the bonus payment.[12]In respect of the individual Applicants, the following matters were agreed - Mr Cure:
"(1) The Applicant worked with Coutts & Co under a contract for a fixed term, on 29 October 2001. The original fixed term was for the period 29 October 2001 until 12 September 2002. (2) Before the fixed term expired a further fixed term contract was agreed, running from 12 September 2002 until 12 June 2003. (3) Therefore, in November and December 2002, the Applicant was engaged under the terms of a contract for a fixed term, with Coutts" and Mr Fraser: "(1) The Applicant was offered a fixed term contract by the Royal Bank of Scotland commencing on 14 February 2002. The original contract was for a fixed term running from 14 February 2002 until 13 February 2003. This contract was revised with effect from 1 December 2002 and extended to 31 August 2003. (2) The Applicant was therefore in November and December 2003 employed under the terms of a fixed term contract with RBS."
[13]For the purposes of the appeal, there is no dispute that Mr Cure was engaged on work to which the Regulations would apply and, since a cross-appeal was not argued, there is no dispute on appeal that the same applies to Mr Fraser, although it has to be said that it was argued that from 1 December 2002, he was engaged on work which was not the same or broadly similar to a comparable employee, and the Tribunal so found.[14]On 1 October 2002, as a consequence of the Regulations, the terms of employment for fixed-term employees were changed. Fixed-term employees were generally paid above the rate for permanent employees, recognising that they were not entitled to certain benefits. From that date, however, additional benefits were made available including eligibility for the staff mortgage scheme, sick pay, house purchase scheme, the right to join the pension scheme and the right to incentive bonuses, all made available to permanent staff on a contractual basis, together with profit sharing. Disciplinary and grievance policies also applied to such workers. The contractual rate of pay of fixed-term workers was not adjusted downwards when this occurred.[15]The Tribunal made clear findings that the act of discrimination occurred in 2002 and not 2001, and thus by the exercise of its discretion, although the complaints were out of time, it was just and equitable to hear them. The Tribunal found "Under the provisions of regulations 7(2) of the Regulations, the less favourable treatment or detriment or failure to act as referred to in that sub-regulation is not the decision and/or memorandum of March/April 2001. Therefore, time does not run from that point. The final determination as to the payment of the bonus; the conditions and requirements for its payment and the actual payment were not in 2001 but in November and/or December 2002 there was therefore no less favourable treatment or detriment as regards either Applicant in March/April 2001 both because they were not employed as fixed term workers at that time and because the specific qualifications for the implementation bonus had not been settled at that time. There only existed an intention to make such a payment on general terms at that time. Therefore, time does not run from that time, as there was no less favourable treatment of either Applicant or detriment suffered by them. The decision and memorandum of March/April 2001 was no more than a statement of intent and was substantially conditional upon the successful integration of the businesses of RBS, NatWest and Coutts. The detailed conditions had not been determined in March or April 2001. This was shown by the amendments to the general statement that was made in April 2001 by the subsequent statement and memorandum of 13 November 2002. Accordingly, the only dates to be considered. by the Tribunal were those of 13 November 2002 and/of 18 December 2002. The specific terms and conditions were not finalised and notified to a!1 employees until 13 November 2002. Those conditions included a specific requirement that the employee who was to receive the integration bonus had to be a permanent employee (subject to the variations mentioned earlier in the findings of-fact above) on 18 December 2002. It could be said on 13 November 2002 that they were unlikely to satisfy the conditions but subsequent variations showed that matters became only finalised on the payment. However, the terms and conditions were determined and any acts of less favourable treatment or detriment were as at 13 November 2002. Accordingly the Tribunal finds that the time for bringing a claim as provided for by regulations 7(2) of the Regulations commences on 13 November 2002." The Respondents' case[16]On behalf of the Respondents it was submitted that the Tribunal erred in law in that it mistook Regulation 7 on limitation for the right not to be discriminated against in Regulation 3. The single question to be determined was whether the act complained of in Regulation 3 took place when the Regulations were in force. If it did not, the Applicants would not be able to complain. It was contended that there was a one-off payment made pursuant to a decision taken in March or April 2001. There was no regime or policy in place, nor a series of acts constituting a continuing act. The cause of action of the Applicants occurred in 2001 when the decision to exclude from the bonus employees in the category of the Applicants was taken. Even if the date of less favourable treatment was moved forward to the date when each was engaged as a fixed term employee, those dates preceded the coming into effect on 1 October 2002 of the Regulations. As a matter of jurisdiction, the claims could not succeed, for what the bank did took place prior to the coming into effect of the Regulation. There is a distinction between an act taken in 2001 and the consequences of that act, not to make a payment in 2002. Time runs from the former.[17]It was further contended that nothing of importance happened on 13 November 2002, but simply the meeting of members of the Human Resources Department to discuss "further details and mechanics of the payment of the integration bonus based on the premises as set out in the original decision ….". When payment was made on 18 December 2002 though not into the bank accounts of the Applicants, this was simply the consequence of a decision made in 2001. Any detriment the Applicants suffered had already been suffered by reason of the 2001 decision. In summary, a decision had been made in 2001 which was a "one-off" decision, and there was no jurisdiction to hear a complaint about that, presented in March 2003.[18]Secondly, it was contended that the Applicants were not treated less favourably on the grounds of being fixed-term employees, for the exclusion from the bonus applied to all non permanent staff. The ground is advanced as follows:
"(f) The Employment Tribunal erred in finding (para. 20, letter F) that the reason for the non-payment of integration bonus was "entirely causally connected to the fact that both Applicants were fixed term contract employees, therefore, non-permanent employees."
Their status as fixed term employees was irrelevant to their non-receipt of bonus: the real cause of their exclusion being their status as non-permanent employees. The category of non-permanent employees included, but was not limited to, fixed-term employees. Applying a test of the "effective and predominant cause" (cf. O' Neill v Governors of St Thomas More RCVA Upper School and Bedfordshire CC [1996] IRLR 372 , EAT), the fact of being a fixed term employee was not the cause of non-payment of bonus. Being a fixed term employee was only the cause of the First and Second Respondents being in the category of non-permanent staff."[19]Of the 100,000 employees in the group of banks, 6000 were non permanent, of whom 3000 were fixed-term employees. There was no overlap between them. The test for determining whether or not there was less favourable treatment is a "but for" test, which is a test of causation. Non permanent employees had been excluded and being a fixed term employee may have been a contributory cause to the Applicants' exclusion from the bonus, but it was only one of the causes. The Applicants' cases[20]On behalf of the Applicants it was contended that the correct legal approach was to regard a declaration of an intention to discriminate in the future as giving or not giving the right to make a complaint of discrimination, depending on the degree of contingency of the intention. Whether or not a right to complain exists depends on whether there is a detriment at that stage. Irrespective of the position obtaining in 2001, it did not affect the right of the Applicants to complain when the intended act occurred, i.e. in November 2002. There is no distinction between Regulations 3 and 7, since Regulation 7 cross-refers to Regulation 3. This case was not simply an illustration of a one-off act having consequences, but was an act taking place in 2002, which could be the subject of a complaint in its own right. It did not follow logically that if there was a right of complaint in 2001, there could not be another right of complaint in 2002. Legal principles[21]A cause of action was defined in Letang -v- Cooper [1965] 1 QB 232 - 242 per Diplock LJ as:
"… simply a factual situation, the existence of which entitled one person to obtain from the Court a remedy against another person."
The phrase has been held from early times to include every fact which is material to be proved to entitle the claimant to succeed, and every fact which the defendant would have a right to challenge: Cooke v Gill (1873) LR 8CP 107 at 116 per Brett J.[22]An action was the source of legal proceedings from the very early stages of the development of Roman law. The introduction of the common law from Henry II onwards brought with it the use of writs and causes of actions. Their rigidity led to gradual abolition in statutes from 1832 to 1873, following the work of legal reformers such as Jeremy Bentham. The CPR no longer uses the term "action" although it survives in section 151(1) of the Supreme Court Act 1981 . It has never appeared in any statute, so far as we are aware, for which an Employment Tribunal had jurisdiction yet the phrase "cause of action" has been widely used without adaptation for the purposes of employment tribunal proceedings. In our judgment it is time for modernisation. In part 2 of the Fixed Term Employees Regulations there is provision for "Rights and Remedies" and Regulation 3 provides a right. Infringement of such a right entitles an employee to present a complaint (Regulation 7). We consider that an appropriate adaptation of cause of action for Employment Tribunals is "right to complain".[23]The Respondents' primary case is that the right to complain in this case arose in April 2001, its secondary case being based on the date of employment of each of the Applicants, and all of these dates are prior to implementation of the Regulations. The Regulations deal with specific cases for the purpose of counting time, but those specific provisions do not apply here. For example, it is accepted on appeal that we are not concerned with a "deliberate failure to act" under Regulation 3(1)(b). This means that the rules for counting time in Regulation 7(4)(b) and 7(5) are of no assistance. Nor is this a complaint about a matter which "is part of a series of similar acts or failures ….." under Regulation 7(2)(a), in which case time would run from the last of them. Nor is this a case of a less favourable term in a contract under Regulation 3(1)(a), in which case time would begin to run on each day of the period when the term was less favourable (Regulation 7(4)(a). Nor do the Applicants contend that this is a case where a discriminatory rule applied, in which case the judgment in Amies v Inner London Education Authority [1977] ICR 308 at 311E would be relevant:
"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."
[24]That authority was explained by the EAT, Lindsay P, in Kells -v- Pilkington Plc [2002] IRLR 693 at paragraph 25 when discussing Swithland Motors [1994] IRLR 275 , to which we will return. "On a different point, Mr Gilroy argued that a failure to promote could only be unlawful as at particular dates when promotion was possible rather than as a continuing act, by analogy with Swithland Motors plc v Clarke [1994] IRLR 275. We do not need to decide this point (though it is hard to see why a policy not, for example, to promote blacks or women should be an unlawful act of discrimination only when promotions were possible) because the tribunal in our case never looked into the facts to see whether continuously or at any particular dates promotion was or was not possible. Nor does it help Pilkingtons to refer to Amies v Inner London Education Authority [1977] 2 All ER 100 EA T , which shows that where there is an offensive practice, rule or policy anyone considering himself discriminate against on account of it has three months from the abrogation of the rule within which to complain. That is not authority for the proposition that no one can claim until the rule is abrogated (if only because, if that were so, the discriminator would be better off continuing to discriminate than if he stopped). In any event, there was no finding of abrogation and in its paragraph 12.3 the tribunal, as we have mentioned, took as a fact that there had been a continuing failure to promote Mrs Kells." The correctness of that principle is accepted by Mr Napier in the following terms:
"In general it will be in the interest of an employee to be able to challenge a deliberate decision to exclude him from the possibility of receiving a payment in the future without having to wait for the date of payment to arrive."
[25]It therefore appears to be common ground that where a policy, regime or rule is in place, the person affected to their detriment may complain of its very existence, in other words complaining about having to work under such a regime. They may also complain when it is specifically applied in their case, such as on the occasion of a specific refusal to promote them, made pursuant to the discriminatory regime. Mr Segal contended that whatever may have been the Applicants' right to complain of the existence of a regime, at least from the date of the implementation of the Regulations, that could not exclude them from the right to complain when the rule was given effect, so as to deny them a bonus when it became payable to comparable permanent employees.[26]In our judgment, a complaint arises when the following conditions apply:(1) A complainant has a contract of employment for a fixed term, as defined by Regulation 1(1).(2) His employer treats him less favourably than it treats a comparable permanent employee: Regulation 3(1).(3) The less favourable treatment takes the form of detriment.(4) Less favourable treatment in the terms of a contract automatically qualifies as "less favourable treatment", without the necessity for it to be found to be a "detriment."(5) As for "any other detriment", under Regulation 3(1)(b) detriment occurs when "…a reasonable worker would or might the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work". Shamoon -v- Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 paragraph 34 per Lord Hope.[27]"Detriment" is given a very wide reading, but "a person may be treated less favourably and yet suffer no detriment": Chief Constable of West Yorkshire Police -v- Khan [2001] IRLR 830 , 835 per Lord Hoffmann. The use of the words "…the less favourable treatment or detriment" in Regulation 7(2)(a) (repeated also in Regulation 7(4)) reflects the same distinction as appears, for example, in Race Relations Act section 4(2), between less favourable terms of employment and detriment. Or for that matter, dismissal grounds a complaint without an investigation as to whether a "detriment" has occurred. For the purpose of the Regulations, where the complaint is not about contractual terms, there must be both less favourable treatment and a detriment. Since that less favourable treatment in the form of a detriment must be attributable to "any act …. of his employer" the three-month limitation period begins with the date on which that act, consisting of a detriment, occurred.[28]The factual circumstances in which discrimination occurs have been illustrated in the authorities as falling into one of the following categories.(1) A one-off act of discrimination, such as a refusal to promote, which has continuing consequences for the disappointed candidate.(2) An act extending over a period of time, constituting a rule or policy, by reference to which decisions are made from time to time.(3) A series of discriminatory acts, whether or not set against a background of a discriminatory policy. A complaint in respect of category (1) must be made within three months of the act or, where specific statutory provision is made for a deliberate omission to act, within three months from the date when the relevant less favourable treatment was "decided on". Time runs for a category (2) complaint when the discriminatory rule is abrogated; and it will also run in the case of the specific application of the rule to any given employee, e.g in refusing promotion, from the date of that application. Time runs in a category (3) complaint where there is specific statutory provision for this, from the last in the series of acts.[29]A full exposition of these rules was given by Auld LJ, before the Court of Appeal, in Cast -v- Croydon College [1998] IRLR 318 . A pregnant employee asked in March 1992 whether she could return after her maternity leave to work part-time and was refused. She made further applications and was met with further refusals in March and May 2003, on her return from maternity leave. She gave notice of resignation in June and left in July 1993. Her complaint to the Employment Tribunal in August 1993 was rejected as out of time, a decision upheld by the EAT. The Court of Appeal held that the correct approach was to regard there as being in place a continuing act, and further that there were several decisions of the relevant employer, the last being the last refusal to accept her application for part-time work in May 1993. The final conclusion in the Applicant's favour was that the Tribunal had jurisdiction, but that a complaint presented in August was only three days out of time and the Tribunal might well have exercised its discretion to hear the case out of time under section 68(5) of the Race Relations Act 1976 . Auld LJ set out the propositions as follows:
"22 The authorities distinguish between a complaint of a 'one-off' discriminatory decision whether or not it has a long-term effect, which is governed by the general provision in s.76 (1), and one of the application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time, 'an act extending over a period' for which s.76(6)(b) provides. 23 Lord Griffiths in Barclays Bank pIc v Kapur [1991 ] IRLR 136 HL, referred, at 138, 17, to the difference between a 'one-off' decision and 'the continuing state of affairs which is governed by s.68(7)(b ) (the equivalent in the 1976 Act of s. 76(6)(b) of the 1975 Act). In Owusu v London Fire & Civil Defence Authority [1995] IRLR 574, a complaint of an employer's failure to regrade the complainant on a number of occasions, Mummery J, giving the judgment of the Employment Appeal Tribunal, made the same distinction: '... the tribunal erred in law in failing to treat the acts complained of on regrading and failure to give the opportunity to act up as continuing acts ...in our view the allegations amount to a prima facie case that there was a continuing act. The continuing act was in the form of maintaining a practice which, when followed or applied, excluded Mr Owusu from regrading or opportunities to act up. 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. ..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 (my emphasis). 24 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. 25 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; see Amies v Inner London Education Authority [1977] ICR 308 EAT - failure to appoint to a position; and Sougrin v Haringey Health Authority [1992] IRLR 416 CA- refusal to upgrade an employee. 26 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 s.6 of the 1975 Act and s.4 of the 1976 Act (see Brooke LJ in Rovenska v General Medical Council [1997] IRLR 367 , CA, at 370-371, in particular, paragraphs 18, 19, 27 and 31) -that it 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 s.76(6)(b) - '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'. See, as examples of claimed continuing acts of discrimination, Calder v James Finlay Corporation Ltd [1989] IRLR 55 EAT -refusal of benefit of employment; and Barclays Bank v Kapur [1991] IB-LR 139- -employer's refusal to take previous pensionable employment into account in calculating pension entitlement."
[30]When an act is alleged to consist of the repetition of a previous discriminatory act, special considerations apply. "34 …….. Policy or no, a decision may be an act of discrimination whether or not it is made on the same facts as before, providing it results from a further consideration of the matter and is not merely a reference back to an earlier decision."[31]In every case, the essential question is "what is the discriminatory act of which complaint is made?" (Paragraph 51). When looking at the way in which the complaint was made, tolerance must be given to the fact that Tribunals are "shop floor" Courts, whose procedures and approaches must be attuned to the needs of litigants in person. Accordingly, a tribunal should not take a narrow or legalistic view of the terms in which the complaint is couched (paragraph 41, following Sougrin v Haringey Health Authority [1992] IRLR 416 CA at 419 paragraph 32, per Sir John Donaldson MR).[32]Cases in which there has been no "completed cause of complaint", as Auld LJ put it (paragraph 52) were found to be unhelpful, i.e. Clarke v Hampshire Electro-Plating Co Ltd [1991] IRLR 490 EAT and Swithland Motors plc -v- Clarke and Others [1994] IRLR 275 , for as Auld LJ put it:
"Neither decision is of help on the particular issue in this case. In the former, Wood J, at 492, 11, giving the judgment of the Employment Appeal Tribunal remitting the matter to an industrial tribunal for redetermination, simply stressed the importance of determining, as between incidents on different dates, when the act of discrimination 'crystallised'. In the latter, the Employment Appeal Tribunal held that there could be no act of discrimination under the s.6(1)(c) of the 1976 Act in omitting to offer employment until the person allegedly responsible for the omission was in a position to offer such employment."
[33]In Barclays Bank plc -v- Kapur [1991] IRLR 136 Lord Griffiths approved the judgment of the EAT in Amies (above). In Amies it was held that a complaint made in 1976 of discriminatory refusal to promote a woman in 1975, and the filling of the post by a man in 1975, before the Sex Discrimination Act 1975 took effect, was out of time. The appointment had a continuing effect but was not a continuing act. In Barclays itself, a decision made by the bank to exclude service by Asian workers abroad from qualification for pensions, made before the implementation of the Race Relations Act 1976 , was not out of time, for there was a continuing act of discrimination.[34]Turning to the second principal ground of appeal, it was accepted in argument by Mr Napier that the correct approach to Regulation 3(3) (treatment is on the ground that the employee is a fixed-term employee) is found in the judgment of Lord Nicholls of Birkenhead in Chief Constable of West Yorkshire Police -v- Khan at paragraph 29:
"Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] IRLR 572 , 575-576, a causation exercise of this type is not required either by s.1 (1)(a) or s.2. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
Conclusions[35]Applying those principles, in our judgment, the arguments of the Applicants are correct on both grounds of appeal. Each Applicant complained that the date on which the action he complained about was 18 December 2002. The Originating Applications were in common form, and these are test cases brought forward by these Applicants, who represent a significant number of members of UNIFI, the specialist trade union. The Originating Applications appeared to have been drafted with the union's advice. They make reference to the announcement in 2001, since in paragraph 11.4 there is a direct quotation from it. There is no reference to the announcement on 13 November 2003, except that the bonus was dependent upon the integration timetable being met, as to which "that has been confirmed and the bonus was paid on 18 December 2002". We bear in mind the generous interpretation which must be given to Originating Applications drafted by litigants in person. These were drafted upon specialist advice, but, in our judgment, the same principle applies, at any rate where agreed facts have been presented to a Tribunal. No point (still here called "pleading" points though pleadings were abolished under the CPR and have never been part of Employment Tribunal proceedings) was taken by Mr Napier indicating that the Applicants had by this document considered that the 2002 statement was merely a repetition of the 2001 statement, or that the Applicants were bound by their representation of the date as being 18 December 2002. In our judgment, that was a correct and helpful stance, and this case has to be decided by reference to more than the Originating Application. (1) The date of the act complained of[36]The principal task of the Employment Tribunal was to determine when there had been an infringement of the right contained in Regulation 3. The right to complain is given by Regulation 7(1) which directly refers to Regulation 3. Concepts of less favourable treatment and detriment, which are the foundations of the right in Regulation 3, are expressly referred to when it comes to limitation in Regulation 7(2)(a). Thus, for the purposes of this case, "the date of the …. detriment" is the date when the right given by Regulation 3(1) was infringed. As we have noted (para 23 above), none of the refinements in the succeeding parts of Regulation 7 assists in defining this date for the purposes of a one-off act. Fixing this date ought to be a matter of fact by the Tribunal, by reference first of all to the complaint made in the Originating Application, and secondly, where evidence is given, to the material adduced at the hearing.[37]The candidates for this date, on the arguments of the parties, are(1) March/April 2001 (the Respondents' primary case);(2) 29 October 2001 and 14 February 2002 the date when each Applicant commenced fixed term employment (the Respondents' secondary case);(3) 13 November 2002 (the Applicants' case and the Respondents' ultimate case but not argued on appeal);(4) 18 December 2002 (the Applicants' original case, not argued on appeal). It will be seen that cases (1) and (2) are variants of the general case put by the Respondents that any right arose before 1 October 2002, the date the Regulations came into effect, and thus the complaints were out of time. There is no dispute that if the correct date is 13 November 2002, it is not on appeal contended that a decision to extend time, pursuant to the discretion given by Regulation 7(3), is incorrect as a matter of law.[38]The Tribunal, we think correctly, adopted a very simple approach to the Respondents' case based on a date prior to the Regulations taking effect. It said that since, in April 2001, the Regulations were not in effect, and since the Applicants were not employees, a right to complain did not exist. This might be thought to be a matter of construction of Regulation 3(1). It is clear that an infringement of the right given by Regulation 3 may be the subject of a complaint under Regulation 7. But no complaint could be made prior to the Regulations taking effect, since what was complained of would not be unlawful. Further, an employee cannot complain against his "employer" unless a fixed-term contract of employment was in place in his case, so it does not make sense to talk about his having a right to complain at a time when he was not engaged on a fixed-term contract.[39]As to the second argument, time beginning to run on the dates of engagement of each Applicant, the first part of the above argument would again apply: what was done (implicitly) in taking them into fixed-term employment on non contractual terms which were less favourable than a comparable permanent employee enjoyed, and, so far as is relevant to our case, excluding them from the integration bonus, was not unlawful at that time.[40]It might be considered that if this argument is correct, it would be appropriate to consider as a candidate the date the Regulations came into effect, i.e. 1 October 2002. But no party has argued for this, at the Tribunal or before us.[41]The Tribunal, however, considered the matter as one of fact. No authority was put before it, or us, where a discriminatory act occurred at a time when it was not unlawful, but was implemented at a time when it was. Amies (above) was a one-off act which, albeit it had continuing consequences, was completed before the relevant legislation took effect. Barclays was the operation of a rule decided upon when it was not unlawful to discriminate on grounds of race, but continuing into a period when it was unlawful. It is not clear what the Tribunal would have held if it had concluded that a finite decision as to the application of the bonus criteria had been made by the Respondents in April 2001, including its certain payment in December 2002. It was not necessary for it to decide this issue nor, on the facts found, is it necessary for us to do so. It is public policy to give a liberal treatment to threshold conditions in discrimination cases: Khan -v- Trident Safeguards Ltd EWCA 2004 Civ 624 CA . It is likely that we would have found it unattractive to allow discrimination go unchecked simply because the decision to discriminate was made at a time when it was not unlawful.[42]As is clear from paragraph 20B of the Tribunal's Decision (cited at para 15 above), the reasons are replete with distinctions between what was enunciated by the Respondents in 2001 and November 2002. After all, the Applicants were not employed, they did not receive a copy of the letter when they were employed, their contracts were due to expire before the integration date of March 2003, and they seemed to have become aware of the Regulations only after their fixed-term contracts had been varied so as to exclude the previous discriminatory terms, in effect from 1 October 2002. There was no communication whatsoever to any employee between April 2001 and 13 November 2002.[43]It must be recalled that since this case was not based on less favourable terms of a contract, the Tribunal was engaged in a wider exercise than simply comparing the 2001 and 2002 documents with each other. It heard evidence from the Respondents' officers responsible for policy and employment issues and from a full time officer of UNIFI, the Applicants' trade union. The Applicants of course gave evidence which focused on the time after April 2001, since they were not then employed. In our judgment, the Tribunal had a sound foundation upon which to decide that the Respondents' approach to the bonus differed in quality between April 2001 and November 2002. The Tribunal described (paragraphs 17-21) the 2001 announcement as "the decision … that the integration bonus would be paid to permanent staff and not to non-permanent staff …", and in November 2002 "the further details and mechanics of the payment of the integration bonus based on the premises set out in the original decision…." were made known. Yet it is clear that the Tribunal regarded the 2001 announcement as conditional and insufficiently detailed, so that it required further detail and specification, and its application or disapplication to the Applicants, by the communication of 13 November 2002. Between those dates, certain categories of staff had been moved in and out of the scope and the primary condition - integration by March 2003 - had been met ahead of time, due no doubt in part to the efforts of the Applicants.[44]The Tribunal further decided that nothing remained to be done prior to it appearing as electronic transfers into the bank accounts of eligible employees on 18 December 2002. It therefore rejected the contention that that was the date of detriment, which would of course have meant that both Applicants' complaints were in time. In our judgment, the Decision is carefully reasoned, based on evidence, that the date of the detriment to the Applicants was 13 November 2002.[45]It certainly could not be said that the 2002 announcement was merely a reiteration of the 2001 decision, as was argued on the basis of the judgment in Cast (above). The Tribunal's findings indicate very substantial reconsideration by the Respondents of the scope of the application of the bonus, thus triggering the later operative date for the date of detriment. We accept the submission that whatever may have been the character of the regime under which the Applicants worked from the time they started, or at any rate from the date of implementation of the Regulations, and irrespective of any right to complain they may have had about that regime, they could not be precluded from making a claim, triggered by the Respondents' announcement on 13 November 2002, following further detailed decisions, specifically excluding them from the benefit of the bonus.[46]It follows from our analysis of the Tribunal's Reasons, that we reject the second part of this ground of appeal, too, which is that there is no magic about 13 November 2002, for nothing happened beyond a meeting of HR professionals to decide on the simple mechanics of implementing the 2001 decision. It was argued on behalf of the Respondents that the error by the Tribunal was "in attaching importance … to the events of 13 November 2002". It follows from that formulation that this is regarded by the Respondents as a matter of weight and thus we hold it would not justify an appeal on a question of law, since the attribution of weight or importance to various matters of fact is a question of fact for the Employment Tribunal: Eclipse Blinds Ltd -v- Wright [1992] IRLR 133 Court of Session, Inner House, at paragraph 14. The language of the Tribunal's findings of fact is quite inconsistent with that submission of what occurred on the two dates (2) Discrimination on the proscribed ground[47]As did the Tribunal, we reject the contention that the detriment, constituting the less favourable treatment in this case, was not "on the ground that the employee is a fixed-term employee". In considering the submission (recorded at para 18 above) it seems that the Tribunal may have been seduced into accepting the approach as one of causation, following the citation to it of the judgment in O'Neill (above). But since that was a discrimination case, and since Mr Napier accepts that the correct approach in such cases (including ours) is that set out above from Lord Nicholls' speech in Khan , the Tribunal was not required to apply a causation test.[48]The Respondents rely on the historical separation of its staff between two primary classifications, permanent and non-permanent. The non-permanent staff included fixed-term employees and a range of others. It is submitted by the Respondents, first, that if being a fixed-term employee is merely a contributory cause to their being excluded from the bonus, this would be insufficient, as defined by Lord Nicholls again in Nagarajan -v- London Regional Transport [1999] ICR 877 at 884 and 886. It was contended that being a fixed-term employee was a sufficient but not a necessary feature of being a non-permanent member of staff, since this was an agreed fact.[49]Once one applies the subjective test, as required by Lord Nicholls' speech in Khan the question is why did the Respondents decide that the Applicants could not receive the bonus? The first answer is "because they are fixed-term employees". The answer given by the Respondents, and which they contend is the correct answer, is "because they are non permanent staff and we have always treated non permanent staff differently." That, however, is not a sufficient answer. The insufficiency becomes stark when the layout of the announcement of 13 November 2002 is considered, for it provides as follows:
"Who is eligible? All permanent staff employed on 13 November …. Who is excluded from payment? …. Employee groups that are excluded: * Employees who are on-call or fixed term contractors on 13 November 2002."
The historical difference between permanent and non permanent staff is not made explicit in this document.[50]It would be correct to answer the question by saying that the reason why the Respondents decided to provide no bonus to the Applicants was because they were members of an employee group which consisted of fixed-term contractors. The fact that the Respondent excluded other employee groups, or other business groups, is not relevant when answering the question posed. Once an employee is within scope of a relevant anti-discrimination measure, and suffers a detriment because he is in that category, it is not relevant to know whether the Respondent discriminates against other employees who may or may not be within the scope of that or another anti-discrimination measure. The Tribunal did not err when it found that the reason for the exclusion of the Applicants from the bonus was that they were in the group of fixed-term employees. As such they were protected by the Regulations, subject to any defence of justification,.[51]Secondly, it was further contended that assistance should be given in the construction of the Regulations to clause 4(1) of the Directive which provides as follows:
"In respect of employment conditions, fixed-term workers should not be treated in a less favourable manner than comparable workers solely because they have a fixed-term contract or relation unless justified on objective grounds" ( emphasis added ) The Regulations do not include the word "solely"
. It is clear that the Regulations were made under powers given in the Employment Rights Act 1996 and these Regulations are not passed pursuant to the European Communities Act 1972. The formulation in the Directive is narrower than that in the Regulations. It is not contended that in giving greater scope for protection against discrimination, these Regulations are outside the power of the Secretary of State. Thus we must construe the Regulations as they are. The Directive applies to "workers", the Regulations apply to "employees", but the Regulations do not require discrimination to be focused "solely" on the grounds of being a fixed-term employee. There was no scope in this case for an examination of the significance of one contributory cause over another, since the Tribunal decided the Applicants were denied the bonus because they were fixed-term employees. But if there were such scope and the question were relevant, then being a fixed-term employee was the predominant reason for the denial of the bonus. Disposal[52]Since we dismissed the Respondents' case that any unlawful act occurred prior to the implementation of the Regulations, and upheld the Tribunal's finding that the relevant date was 13 November 2002, it has not been necessary for us to consider the Applicants' argument that the Tribunal wrongly dismissed their claim that the relevant date was 18 December 2002 when the bonus was paid into relevant employees' bank accounts.[53]The combined effect of paragraph 20H, and paragraph (4) of the agreed facts in Mr Cure's case and of paragraph (3) in Mr Fraser's case, is that nothing further requires to be done by the Tribunal or by the EAT to carry these judgments into effect but if the Applicants require any step under Regulation 7(7) to be taken, an application should be made within seven days of this judgment.[54]We would like to thank both Counsel very much for their clear written and oral submissions. The appeals are dismissed.