(1) DR F RAHMEH (2) DR A NAGUIB v (1) ROYAL COLLEGE OF OBSTETRICIANS AND GYNAECOLOGISTS (2) JOINT COMMITTEE ON HIGHER MEDICAL TRAINING (3) DEPARTMENT OF HEALTH [2005] UKEAT 0625_04_2605

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0625_04_2605Case No Appeal No. UKEAT/0625/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) DR F RAHMEH (2) DR A NAGUIBAPPELLANTS(1) ROYAL COLLEGE OF OBSTETRICIANS AND GYNAECOLOGISTS (2) JOINT COMMITTEE ON HIGHER MEDICAL TRAINING (3) DEPARTMENT OF HEALTHRESPONDENTS
Before
His Honour Judge McMullenDate 26 May 2005
[1]APPEARANCES For the Appellants MS KARON MONAGHAN (of Counsel) Instructed by: Messrs Irwin Mitchell Solicitors 150 Holborn London EC1N 2NS For the First & Second Respondents MS SUSAN BELGRAVE (of Counsel) Instructed by: Messrs Hempsons Solicitors Hempsons House Villiers Street London WC2N 6NJ -and- Messrs Field Fisher Waterhouse Solicitors 35 Vine Street London EC3N 2AA For the Third Respondent MR JONATHAN MOFFETT (of Counsel) Instructed by: Office of the Solicitor, Dept of Health 48 Carey Street Room 546 New Court, London WC2A 2LS SUMMARY Time Limits; Practice and Procedure The Employment Tribunal did not err in law when it decided by agreement that it should hold a preliminary hearing to determine time limits and correctly applied the judgment of the Court of Appeal in Chaudhary v Royal College of Surgeons and Others [2003] ICR 1510 . HIS HONOUR JUDGE McMULLEN QC This case is principally about the exercise of case management functions by an Employment Tribunal but it also engages issues relating to the exercise of discretion in considering time points. The judgment represents the views of all three members. We will refer to the parties as "the Claimants" that is Dr Naguib and Dr Rahmeh and the "Respondents" that is the Royal College of Obstetricians and Gynaecologists ("the College"), the Joint Committee on Higher Medical Training ("the Committee") and the Department of Health ("the DOH"). Introduction[2]It is an appeal by the Claimants in those proceedings against a Decision of an Employment Tribunal sitting at London Central, Chairman Mr G D Etherington, over three days with a further five days in chambers extending from 3 December 2003 to its registration with extended reasons six months later on 10 June 2004. The Claimants were represented there and here by Ms Karon Monaghan and the DOH by Mr Jonathan Moffett. Ms Susan Belgrave, who represented the Committee below, now represents it and the College. The scope of the proceedings[3]The Tribunal's summary of the scope of its enquiry is as follows:
"1 The Applicants complain that they were directly and indirectly discriminated against arising from their denial of access to Type 1 medical training which in turn prevented them from obtaining a Certificate of Completion of Specialist Training (CCST) with the consequence that they could not become consultants within the National Health service. They present their cases against the Respondents on the basis that they were either their employers, or training or qualifying bodies. Save that the Department of Health acknowledges that it had a relevant training function the Respondents deny that they had any such relationship with the Applicants and that they in any way discriminated against them. Further they assert that the Applicants have lodged their claims outside the time limited by statute for them to do so and that it would not be just and equitable for the Tribunal to extend time. Issues 2 The Tribunal considered the following issues: Whether in the light of section 54(2) of the Race Relations Act 1976 and the decision in British Medical Association v Chaudhary CA the Employment Tribunal has jurisdiction to consider complaints against the Respondents. Whether the Applicants' complaints in relation to matters prior to 11 December 2002 (Rahmeh) and 12 December 2002 (Naguib) are out of time and if so whether they form part of a continuing act and if not whether it is just and equitable to extend time to found jurisdiction. Whether the Respondents or any of them a. employed the Applicants within the meaning of section 4(2) of the Race Relations Act 1976; b. can confer an authorisation or qualification within the meaning of section 12 of the Race Relations Act 1976 that is whether they are qualifying bodies within the meaning of that section; c. provide or make arrangements for the provision of facilities for training within the meaning of section 13 of the Race Relations Act 1976; d. whether or not the Originating Application should be amended to encompass an allegation that the Respondents RCOE and JCHMT knowingly aided another person (the Department of Health) to do an act made unlawful by the Race Relations Act thus being treated for the purposes of the Act as themselves doing an unlawful act of the like description."
[4]To those questions the Tribunal gave the following answers. "The unanimous decision of the Tribunal is that the Tribunal does not have jurisdiction to consider the Applicants' claims for race discrimination as they have failed to present their claims with the period prescribed and it would not be just and equitable to extend that period. The Tribunal also unanimously finds that there was no continuing act of discrimination and any matters of which the Applicants complain which took place before 11 December 2002 (Dr Rahmeh) and 12 December 2002 (Dr Naguib) are out of time; that none of the Respondents employed the Applicants, nor did they confer authorisation or qualification; that only the Department of Health provides facilities for training as defined in section 13 of the Race Relations Act 1976 (the Act); and that the Originating Applications should not be amended to include an assertion that the Royal College of Obstetricians and Gynaecologists (RCOG) and the Joint Committee on Higher Medical Training (JCHMT) aided the Department of Health to do an act made unlawful by the Race Relations Act."[5]Against that decision a number of procedural and substantive points are made on behalf of the Claimants. Directions sending this appeal to a preliminary hearing were given by His Honour Judge Prophet and thence to a full hearing by His Honour Judge Ansell and Members, who directed the Employment Tribunal to give reasons for what we will call "the Adjournment Decision," for refusing an adjournment. These were supplied on 1 November 2004, for which we are grateful. In addition we will refer to directions given by a Chairman, Ms A M Lewzey at an oral hearing on 15 August 2003 ("the Directions"). The legislation[6]Legislation relevant to this appeal falls into two categories. First, legislation and procedural rules deal with the Tribunal's powers of case management. Secondly, the Race Relations Act 1976 deals with procedural and substantive issues relating to liability. As for procedure, the Employment Tribunal has significant powers of case management. For the purposes of this appeal, it must be recognised that decisions were registered either side of the introduction of new procedural regulations and rules on 1 October 2004: the Employment Tribunal Regulations 2004. Thus, the Directions given by Ms Lewzey and a preliminary hearing which those directions set up took place under the old regime, the 2001 Regulations and Rules. Written reasons for the Adjournment Decision were given under the new regime. Common to both is the overriding objective imposed on a Tribunal and the parties by Regulation 10 of the 2001 Regulations. Pursuant to Regulation 10, case management powers were specified under Rule 4. These included the power to make directions "on any matter arising in connection with the proceedings as appear to the Tribunal to be appropriate".[7]By Rule 6 a Tribunal could determine "any issue relating to the entitlement of any party to bring or contest the proceedings".[8]The overriding objective was reiterated in only slightly modified form by the 2004 Regulations. Extensively modified case management powers were, however, provided for in new Rule 10. These include powers to regulate the manner in which proceedings are conducted and to order postponement or adjournment.[9]A claim might be amended pursuant to the power given in Rule 15 of the 2001 Rules which is a general power in the Tribunal to regulate its own procedure. That power is substantially replicated in the case management powers given by Rule 10 of the 2004 Regulations.[10]The substantive law on which the Claimants rely is Sections 12 and 13 of the Race Relations Act 1976 . These create liability for race discrimination by qualifying bodies, that is bodies that can confer an authorisation or a qualification, and by persons concerned with the provision of vocational training. The DOH accepts that it is responsible for postgraduate medical training through various postgraduate medical deaneries, including as here, the Wessex Deanery. During their period of training, medical practitioners undertake work for NHS hospitals and are employed by NHS Trusts situated in the geographical areas covered by the relevant deanery.[11]Section 33 (1) of the Act creates liability for a person aiding a person to discriminate in the following terms:
"A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description."
[12]Claims for breach of the Act must be made within three months for Section 68 provides as follows: "(1) An employment tribunal shall not consider a complaint … unless it is presented to the Tribunal before the end of –(a) the period of 3 months beginning when the act complained of was done … (6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. (7) For the purposes of this section – …(b) any act extending over a period shall be treated as done at the end of that period; and(c) a deliberate omission shall be treated as done when the person in question decided upon it. 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. For the purposes of this section …(b) any act extended over a period shall be treated as done at the end of that period. The facts[13]Dr Fouz Rahmeh is a medical practitioner with an interest in rheumatology. She comes from Syria. Dr Adel Naguib is a medical practitioner with an interest in obstetrics and gynaecology. He comes from Egypt. Dr Rahmeh presented an Originating Application to the Tribunal on 10 March and Dr Naguib on 12 March 2003. A new system of higher specialist medical training was introduced by the DOH in 1996. A full account of the new regime is given in the judgment of Mummery L J in Chaudhary v Royal College of Surgeons [2003] ICR 1510 at paragraphs 10-15. We will return to this authority for we regard it as providing answers to a number of issues in this appeal. The system involved the creation of a new grade of doctor, a specialist registrar ("SpR") grade. Rules for the new system were contained in a book known popularly as the Orange Guide. New programmes were devised for the SpR grade. Type 1 training was intended to lead to the award of a Certificate of Completion of Specialist Training ("CCST"). The Specialist Training Authority awards this certificate. The STA is the responsibility of the medical Royal Colleges. The award of a CCST entitles the doctor to practise as a consultant. The Type 2 training programme is not intended to lead to the award of a CCST. When the new SpR grade was created a transitional programme was introduced. Practitioners in the existing Registrar grades were given the opportunity to transfer into it. This opportunity was extended to doctors who were described as 'overseas doctors' meaning those who did not come from the European Economic Area. Criteria were set for the entry of such doctors into a Type 1 training programme. If a doctor did not meet the criteria at the time of transition, he or she was eligible to enter Type 2.[14]Although there was a dispute on appeal about the way in which the Claimants had put their cases, we find they stated that they had entered a Type 1 training programme on transition but had been denied a CCST and secondly they had been denied entry onto a Type 1 training programme and had entered onto a Type 2 programme.[15]The entry criteria for Type 1 were as follows:(a) minimum entry criteria specified by the relevant college(b) the previous holding of a visiting registrar post in relation to which there had been an appointment process involving open competition(c) leave to remain in the United Kingdom for a period sufficient to complete a Type I training programme[16]The Tribunal found that each Claimant was assigned to and embarked upon and continued to undergo Type 2 training and not Type 1. The requirements placed upon the Claimants were made "once and for all" in Dr Rahmeh's case on 13 May 1997 and in Dr Naguib's case on 29 July 1996. A decision was made in each case on those respective dates and did not constitute a continuing act over a period of time. No new decisions were made in their cases. The Tribunal held as follows:
"19. The existence of the Calmanisation reforms and the outcome of the authorities' deliberations meant that both Applicants were prevented or disqualified from obtaining a CCST in due course since the applicable rules so excluded them. The criterion was applied to them when the decision was made by the qualifying bodies that the doctors did not qualify for part 1 training, more importantly, neither held a training post for which they had qualified in open competition against all other doctors who wished to seek the post. The period during which their training status was established (the transitional period) ended for Dr Naguib on 15 July 1996, and for Dr Rahmeh, on 14 February 1997. On one view of the evidence the conditions which the Applicants now assert were directly or indirectly discriminatory (those summarised above) were applied once and for all to the Applicants no later than the ends of those periods."
[17]It therefore decided that the claims were made very substantially out of time, by five or six years. It considered whether it was just and equitable to grant an extension of time and considered the factors set out in British Coal Corporation v Keeble [1997] IRLR 336 EAT Smith J and Members which included the following:
" • the length of and reason for the delay • the extent to which the cogency of the evidence is likely to be affected by the delay, • the extent to which the party sued has cooperated with any requests for information, • the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action • the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action."
None of them moved the Tribunal to exercise its discretion.[18]Nevertheless, the Tribunal went on to note that although the Respondents were not the employers of the Claimants, the DOH conceded that it was a vocational training body pursuant to Section 13. None of them was a body falling within Section 12. It then went on to consider whether to allow an amendment to the complaint to allow the Claimants to allege that the College and the Committee had unlawfully aided the DOH contrary to Section 33. The Tribunal allowed the application to be made, holding that it was not a specific requirement that mention be made of Section 33 since such an allegation would form part of the general allegations in the case. The Tribunal turned to what it considered were the "pleadings". Pleadings are not a part of Employment Tribunal procedure nor have they ever been. Nor are they part of the CPR. We will use the modern language of "stated case". The Tribunal asserted that while the gateway was open to claim under Section 33, it was necessary to set out the facts on which the assertion was based. In particular a very substantial alteration would have been required to the Claimants' stated cases to identify the primary facts upon which an allegation of the College and the Committee knowingly aiding an unlawful act by could have been made. In short, no such facts were presented and so an amendment would be necessary for it was "generously characterised as very sketchy". These new allegations changed the basis of the existing claim and no explanation had been advanced as to why the application has not been made earlier. The Tribunal refused to allow an amendment to yet further change the stated case so as to present facts sufficient to ground the claim under Section 33. In doing so it also looked at the substantive merits of the proposed amendments and held that "substantially more is needed to raise the beginnings of a case and it is difficult to see how this could be discovered".[19]In the light of those conclusions, the claims were dismissed. The issues and conclusions. 1 Perversity and delay[20]While there was a substantial delay in the Employment Tribunal giving its Extended Reasons in this case, Ms Monaghan recognised that in the light of the judgment of the Court of Appeal in Bangs v Connex South Eastern Ltd [2005] IRLR 389 (CA) she would not argue this point. At most, it was in the background of her submissions that on findings of fact EAT should give less deference to its judgment since errors had crept in as a result possibly of delay. Three errors were identified. One was conceded, but in any event the Tribunal had made a correct definition of the point under challenge elsewhere in its judgment. As to whether or not a closed competition was entered into, there is simply a difference in the understanding of that word. And as to the dates relating to the change in immigration rules the Employment Tribunal had in mind their relative significance to the case. In our judgment such errors as have been identified by these points were insignificant and do not meet the high threshold of an overwhelming case on the facts which must be made for a perversity challenge to succeed: Yeboah v Crofton [2002] IRLR 634 CA. 2 Adjournment of the preliminary hearing[21]Ms Monaghan argues that, if necessary, permission should be given to add a new ground of appeal, now that the EAT's direction to the Tribunal to supply Extended Reasons for the refusal to adjourn has been forthcoming. This is that the Tribunal erred in its approach to the authorities on preliminary hearings and time limits and/or misunderstood them. We allowed that point to be argued, since it followed from those Reasons.[22]The principal ground of appeal concerns the nature of the preliminary hearing. The two-part gist of the Claimants' complaint on appeal is that the Tribunal should not have conducted a preliminary hearing, for the issues to be determined, and the issues in fact determined, were apt only for determination at a full merits hearing. Depending on how the hearing is characterised, the judgment will be either the exercise of straightforward case management principles or the denial of justice. The starting point is to see how the Claimants themselves characterise this ground of appeal for they say as follows:
"The Employment Tribunal erred in refusing the Claimants' application for an adjournment of the determination of the preliminary issues to the full trial."
In order to understand this complaint it is necessary to look at how the pathway was paved to the preliminary hearing. As we have said, on 15 August 2003 at a Directions hearing attended by legal representatives for the parties, and where the Claimants were represented by a solicitor, the Chairman, Ms Lewzey, included what the Claimants' argument conveniently summarises as "the time points":
"3.1.2 Whether the Applicants' complaints in relation to matters prior to 11 December 2002 are out of time and, if so, whether they form part of a continuing act and, if not, whether it is just and equitable to extend time to found jurisdiction."
[23]Later clarification made plain that issue covered both direct and indirect discrimination. Also at the Directions hearing, provision was made for the conduct of the preliminary hearing and for full preparation by way of disclosure and exchange of witness statements. The parties prepared their cases in accordance with those directions. Rejecting the Claimants' submissions a further point was added later. At least in respect of the time limits point, there was agreement at the Directions hearing as to the scope of the preliminary hearing. That agreement was confirmed on 13 November 2003 by a letter from the Claimants' solicitors.[24]On the morning of the preliminary hearing an application was made to adjourn the issues from the preliminary hearing to a full hearing. Two grounds were put forward. These related to "the identification of the issues" and "the evidence". It was contended it was no longer appropriate to conduct a preliminary hearing. It seems implicit from their approach that the Claimants were expecting that a decision effectively to reverse the Lewzey Directions should not be made unless there had been a change in circumstances. That was made explicit by Ms Monaghan on appeal for she accepted the correctness of the proposition set out in Goldman Sachs Services Ltd v Montali [2002] ICR 1251 EAT Judge Peter Clark and Members: an Employment Tribunal will follow the principle set out in the Civil Procedure Rules and will not reverse an earlier interim order which has dictated the parties' preparation of their cases in the absence of a material change in circumstances (see paragraph 26). Reversal of an earlier decision to hold a preliminary hearing in a disability discrimination case was wrong in principle and the wrong exercise of discretion. The Employment Tribunal in our case acknowledged the force of that judgment (see reasons on the Adjournment decision paragraph 10). It considered each of the arguments addressed by Ms Monaghan, who had been instructed before the preliminary hearing but after the Directions hearing and we take it after the letter of 13 November 2003. The Tribunal found that it was not concerned about the contention that documentation had not been completed. The parties had agreed bundles of documentation and there had been no request for any further material. In any event the Tribunal indicated (paragraph 23) that if any document not hitherto mentioned became relevant then appropriate disclosure orders would be made. Notwithstanding that the issues were complex, the Tribunal considered that it would not be difficult for it to digest the voluminous material. Any decision it made would not embarrass the subsequent Tribunal for if it were against the Claimants on time limits there would be no such hearing and if it were in favour of the Claimants it would be binding on the parties in respect of the issues determined by the preliminary hearing. The Tribunal was directed to relevant authorities including Anyanwu v SBS Union [2001] IRLR 305 , Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 (it being accepted that there was a typographical error in respect of this case) and Hendricks v Metropolitan Police Commissioner [2003] IRLR 96 . It came to the conclusion there was no material change in circumstances and refused the adjournment.[25]The discretion to conduct a preliminary hearing should be exercised sparingly: NUT v Governing Body of St Mary's Church of England (Aided) Junior School [1995] ICR 317 EAT at 322 per Mummery P. Further, when a preliminary issue cannot be entirely divorced from the merits and will involve hearing evidence substantially overlapping the evidence on the substantive complaint, it is preferable that there should be one hearing: Munir v Jang Publications Ltd [1989] ICR 1 at page 6. The essential criterion for determining whether or not to hold a preliminary hearing is whether there is "a knock out point which is capable of being decided after only a relatively short hearing": C J O'Shea Construction Ltd v Bassi [1998] ICR 1130 at 1140. It should also be borne in mind that in Chaudhary (above) this very same time point was taken as preliminary issue and no criticism was made by the Court of Appeal of this approach.[26]It is clear to us and no doubt to the Employment Tribunal that an agreed position was sought to be unpicked by the Claimants in the light of what occurred during the preparation for the preliminary hearing. That of course is permissible if the conditions set out in Goldman Sachs are met. The decision to hold a preliminary hearing in the first place was a matter of discretion and case management. It was also agreed by the parties. The decision to refuse to adjourn is by definition a case management decision based upon discretion. The Tribunal considered all the circumstances and applied itself correctly to the law. It was looking for a material change in circumstances demonstrated by the Claimants. The assessment of those circumstances and the evaluation of their effect upon the original decision were matters of appreciation and degree for the Tribunal. We can see no error in the Tribunal's approach to the application to adjourn. As is clear from the Practice Direction, appeals against case management decisions are the less likely to succeed: EAT Practice Direction [2004] paragraph 11.6.2.[27]The second part, and actually the real thrust of this ground of appeal, is that the Tribunal strayed beyond the bounds of what was required for the preliminary hearing and into the territory to be covered by the substantive hearing. It is again necessary to recall what the preliminary issue was about. In order to determine whether the claims were out of time it was necessary to see whether on the claims as put in the Originating Applications, there was jurisdiction. We have examined these carefully against the submissions made to us and hold that the DOH is correct when it argues that essentially the Claimants were seeking to argue two different positions i.e. that they were in Type 1 and Type 2 training. Since the preliminary issue went to jurisdiction, a finding would be necessary not upon a conditional assessment but upon an evaluation and proper findings of the facts. Here the Tribunal found it necessary to conclude whether the Claimants were in Type 1 or Type 2 training. It had to do that before it could determine the preliminary issue of jurisdiction i.e. whether the claims were in time. When a claim is presented in the alternative of being in time, or if not seeking the exercise of discretion to extend time, or again alternatively whether there is a continuing act, it is necessary to make findings on all of those issues including whether there was an act which was in the nature of a continuing act. Once it is decided to hold a hearing to determine jurisdiction where time limits are an issue, and where at least one of the allegations is of a continuing act, it is open to the Tribunal to determine that as a preliminary issue. In certain circumstances it may be inappropriate or unwise to do so, or it may not save time, but a Tribunal cannot be faulted when it accepts the agreed position of the parties that such should be the way forward. In our judgment there is no substance in the complaint on appeal that the Tribunal went beyond its mandate to determine the preliminary issues relating to time and this ground is dismissed. 3 Extending the time limit[28]In this part of the appeal, on the footing that they were out of time and there was no continuing act, the Claimants contend that the Tribunal was perverse in refusing to exercise its discretion to allow the claims to be made out of time. For a perversity appeal to succeed an overwhelming case must be made on the facts: Yeboah v Crofton [2002] IRLR 634 (CA). A Tribunal in considering this matter should look at the factors which we have cited above from British Coal Corporation v Keeble which indicate that it is for a Claimant to convince it that it is just and equitable to extend time, for the exercise of discretion is the exception rather than the rule: Robertson v Bexley Community Centre [2003] IRLR 434 per Auld LJ. We have pointed out that the Tribunal has given cogent reasons corresponding to each of the heads set out in British Coal Corporation . Nor can it be said that considering prejudice to the Respondent, including the fact that it no longer had certain documents, was an irrelevant factor.[29]The major part of this aspect of the appeal is a complaint that the Tribunal failed properly to consider the impact of its decision upon the Claimants; in other words, that the Claimants had plainly demonstrated prejudice if a decision were made to exclude their claims. But there cannot be any doubt that the Tribunal knew that that was precisely the effect of the decision it made for this case was all about the refusal to allow an overseas doctor to proceed to a position where he or she could obtain a consultant's job. The Tribunal was also aware of the contemporaneous proceedings in the Employment Tribunal which had resulted in a finding of discrimination in similar circumstances, which discrimination was not justified: see Jadhav –v- The Secretary of State for Health . The proper approach for an Employment Tribunal in similar circumstances is to consider relevant factors, to disregard irrelevant factors, and to decide in its discretion whether it is just and equitable to extend time. We detect no error in the Tribunal's careful approach to all of the matters relevant to this aspect of its decision. This ground of appeal is dismissed. 4 A continuing act[30]This ground of appeal rests on the proposition that the failure to recommend the Claimants for a CCST and/or to treat their training as Type 1 constitutes a continuing act. A full exposition of the rules was given by Auld LJ, for the Court of Appeal, in Cast -v- Croydon College [1998] IRLR 318 , which was of course cited by the Tribunal, 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." "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). The application of the law to specialist medical practitioners claiming race discrimination arising from the SpR reforms out of time could not be clearer following Chaudhary where Mummery LJ explained the facts and the legal propositions:
"29 On 2 December 1997 Mr Chaudhary presented his first originating application to the employment tribunal at Southampton. He complained of "continuing racial discrimination since 12 October 1991"
. The application made it clear that his claims were for continued race discrimination, both direct and indirect… 30 At the hearing of the preliminary issue, which was adjourned several times, evidence was given by Mr Chaudhary and by Professor Temple. A witness statement by Mr Chaudhary made it clear that his complaint included a claim that the application of the criteria for recognition of the Manchester post had disadvantaged him on racial grounds. The counsel then acting for Mr Chaudhary submitted that one of his client's complaints was that the royal College had, through the specialist advisory committee, departed from the criteria set by the Department of Health in the Orange Guide and had applied a racially discriminatory policy in not recognising his training at Manchester. The policy had given rise to the decision not to allow Mr Chaudhary entry to the new training grade. It was also contended that Professor Temple had approved what had gone on and that he had taken a decision relating to Mr Chaudhary's application for entry under the transitional arrangements. Act extending over a period 66 I agree with the conclusion the tribunal, which was upheld by the appeal tribunal, that Mr Chaudhary's complaint of race discrimination ws not of an act extending over a period. His complaint of indirect discrimination was based on the application to his case of the requirement or condition that the registrar post, held by Mr Chaudhary at Manchester, should have been one that was approved by the specialist advisory committee. That requirement or condition was last applied to him when his appeal against the decision of the postgraduate dean, Dr Platt, was dismissed by the appeal committee. It held that the Manchester post did not entitle him to transition to the new specialist registrar grade, as it was not recognised by the specialist advisory committee. The dismissal of the appeal was formally notified to Mr Chaudhary on 7 February 1997. Although the requirement or condition may have continued in existence for the purpose of being applied to appeals by other registrars seeking entry into the new grade, there was no continuing application of the requirement or condition to Mr Chaudhary in the period of three months prior to the issue of his proceedings. The period during which the condition or requirement was applicable to Mr Chaudhary's application for transition to the specialist registrar grade had ceased to operate when his appeal against refusal was decided. That was well before the three-month period prior to the presentation of his originating application. 67 As for the authorities cited, this case is covered by the reasoning of this court in Rovenska v General Medical Council [1998] ICR 85 , 94 based on the wording of section 1 (1)(b) of the 1976 Act that indirect discrimination occurs when a person "applies" to another a discriminatory requirement or condition to his or her detriment. Cases such as Rovenska and the instant case, in which applications are made for registration by regulatory authorities and are rejected, are distinguishable from the cases in which an employer continuously applies a requirement or condition, in the form of a policy, rule, scheme or practice operated by him in respect of his employees throughout their employment: See Barclays Bank plc v Kapur [1991] ICR 208 , Cast v Croydon College [1998] ICR 500 , 515B and Owusu v London Fire & Civil Defence Authority [1995] IRLR 574."[32]In the instant case the Tribunal considered this judgment and found firmly as a fact that decisions were taken of a one-off nature in respect of each Claimant and these decisions did not form a continuing act. Again, we can see no error in the Tribunal's approach to this based as it was upon authority. It was for it to decide as a fact what occurred in 1996 and 1997 and to determine whether that was a continuing policy or simply an act which had continuing consequences for the Claimants. The Tribunal considered the relevant authorities before making a judgment on where to draw the line, finding as it did that the circumstances fell on the Chaudhary side, out of time. It cannot be said to be perverse. This ground of appeal is dismissed. 5 Aiding an unlawful act[33]This part of the appeal relates to the Claimants' case under Section 33 that the College and the Committee knowingly aided the DOH to commit an unlawful act of race discrimination. The Tribunal acceded to an application for preliminary point to be raised on this but dismissed it on the stated cases of the Claimants since no facts were set out demonstrating knowledge by the two bodies that they had engaged in unlawful acts. Strictly speaking this decision was unnecessary for the Tribunal to make since it had ruled against the Claimants on the preliminary issues relating to time limits. Before us, Ms Belgrave consistently made the point that her clients' involvement "as a postbox" was very much secondary to the principal issues in this case and the relief sought by the Claimants against her clients would be a declaration at most.[34]On behalf of the Claimants it is contended that that is not a relevant factor. We agree. If the Claimants set out facts which could establish liability under Section 33 for aiding race discrimination, public policy requires that they should proceed to a full hearing and it is not for us to determine the value to the Claimants of a declaration, a recommendation or any compensation which might in due course be forthcoming against these public authorities.[35]We ourselves would find it unnecessary to decide the Section 33 point. Ms Monaghan in her reply indicated that, if her appeal on time limits failed, the appeal should be dismissed. The finding by the Employment Tribunal was not necessary for its decision, and in the light of Ms Monaghan's constructive approach, we would not think it necessary for us to add further. There may be some practical value in a tribunal at first instance giving a second judgment on jurisdiction on the alternative footing that its first judgment is wrong. But on appeal, that approach has very limited utility, based as it is on the hypothesis that the Employment Tribunal and now the EAT is wrong on time limits. Nevertheless, in deference to the full argument which we have heard in relation to Section 33, we will express a view.[36]The absence of facts clearly set out in the Originating Application indicating how each of the respective bodies knowingly aided unlawful race discrimination by the DOH is fatal. The Employment Tribunal appears to have taken the matter as one to be determined at the preliminary hearing on its merits. Whether that approach, or alternatively a more generous approach appropriate to the striking out of the claims against the two bodies, was right, is not necessary for our decision. At the very least, in claims made six or seven years after the relevant events, these Claimants' stated cases had to set out who within the Respondent body had the relevant knowledge, at what date, what the knowledge consisted of and its extent, what steps were taken to aid the primary discriminator, here the DOH, by whom and when. Since those matters were substantially missing, and not capable in the Employment Tribunal's view of being made good by further particularisation, it cannot be faulted in its judgment about the College and the Committee, on the assumption for a moment that its judgment in relation to time limits was correct.[37]This case was unusual at the Employment Tribunal and we say a few words about it. It is good practice for there to be a case management discussion under the Rules where directions can be given, particularly in complicated discrimination cases. Care should be taken where preliminary issues are identified so that time and expense are not taken up with issues which should properly be determined at a full hearing, and on issues which would become relevant only if the primary judgment were later to be overturned. A preliminary hearing is principally designed to deal with knock-out points. Time limits, which control whether the Tribunal has jurisdiction, are often susceptible to determination at a preliminary hearing. It is appropriate to make findings and if alternative cases are advanced by the Claimant, it will be necessary for the Tribunal to decide which case is correct for the purpose of the running of time. A preliminary hearing, which takes less than three days, but which is followed by five discontinuous days' consideration in chambers leading to a Judgment five months after written submissions have closed, may give the impression that the issue was too complex to be determined at a preliminary hearing.[38]We would very much like to thank all Counsel for their careful written and oral submissions completing the case well within time. The appeal in each case is dismissed.