EAST AND NORTH HERTFORDSHIRE NHS TRUST v DR A N M FERNANDO [2005] UKEAT 0727_04_1003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0727_04_1003Case No Appeal No. UKEAT/0727/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAST AND NORTH HERTFORDSHIRE NHS TRUSTAPPELLANTDR A N M FERNANDORESPONDENT
Before
His Honour Judge Peter Clark Mr A E R MannersLord Davies of CoityDate 10 March 2005
[1]APPEARANCES For the Appellant MR ROBIN ALLEN QC (of Counsel) Instructed by: Messrs Capsticks Solicitors General Accident Building 77-83 Upper Richmond Rd Putney London SW15 2TT For the Respondent MISS E DAY (of Counsel) Instructed by: Messrs Irwin Mitchell Solicitors 150 Holborn London EC1N 2NS SUMMARY Time Limits Act extending over a period. Employment Tribunal decision upheld. HIS HONOUR JUDGE PETER CLARK This is an appeal by the employer, East & North Hertfordshire NHS Trust, against the decision of an employment tribunal sitting at Watford under the chairmanship of Mr David Cockburn on a preliminary issue as to whether the claimant Dr Fernando's originating application presented to the tribunal on the 23 rd February 2003 was in whole or in part time-barred[2]The tribunal found that her entire claim of racial and sex discrimination was in time on the basis that the complaints of discrimination alleged to have taken place between 1997 and 2003 constituted an act extending over a period which ended less than 3 months prior to the presentation of her originating application within the meaning of both Section 68(7)(b) The Race Relations Act 1976 and Section 78(6)(b) of the Sex Discrimination Act 1975. That decision was promulgated with extended reasons on the 19 th August 2004. The claimant also raises a protective cross appeal which strictly arises only if this appeal succeeds and which we shall refer to later. Background[3]The claimant, a Sri Lankan female, commenced employment with the appellant's predecessor as a consultant microbiologist in 1983. She retired from the employment on the 10 th June 2003. By 1986 she had reached the maximum point on the Consultants scale. From 1996 she became eligible to participate in a new national scheme known as the Discretionary Points Scheme ('DPS'). The nature of that scheme is detailed in Paragraph 6 of the Tribunals Reasons. In summary, consultants at the top of their pay scale could apply for DP's each year, subject to the scheme's rules. A limited number of points were allocated to applicants by a decision making group ('DMG') made up of consultants, management representatives and a Non-Executive Director of the Trust who acted as Non -Voting Chair.[4]The Claimant's record of applications was as follows: 1997 application failed, 1998 application failed, 1999 application failed (appeal unsuccessful), 2000 granted one point (appeal unsuccessful), 2001 ineligible under the rules and did not apply, 2002 application failed but on appeal heard on 24 th June 2003 she was awarded a further DP.[5]By her originating application she complained that a white male consultant with her record of achievement would have received more than the 2 DP's which she was awarded in total over the relevant period, up to the maximum allowed of 8 points. She contends that in each of the years she applied she received less DP's than a relevant comparator would have received; the exception was the year 2001 when she was ineligible to apply under the Scheme rules because she had been awarded a single point the year before. The Appeal[6]Mr Robin Allen QC takes two interlinked points on behalf of the Trust. He accepts that her complaint relating to the award of one point on appeal in June 2003 was within time but submits that the earlier applications were out of time a) because each annual application represented an individual act and they were not cumulatively to be regarded as an act extending over the period commencing in 1996/97 and b) that in the alternative her non-application for DP's in 2001 represented a break in the continuing act of the purposes of the statutory provisions.[7]The Tribunal below was invited to consider the issue raised in the light of the Court of Appeal's approach in Hendricks v Commissioner of Police of the Metropolis (2003) IRLR 96 . At Paragraph 10 of their reasons the Tribunal refer to the relevant passages from the judgement of Lord Justice Mummery at paragraphs, 48, 51 and 52. His Lordship warned tribunals against asking themselves, based on the earlier authorities, whether the employer operated a discriminatory rule, policy, scheme, regime or practice in order to answer the question posed by the legislation, was this an act extending over a period? Instead he formulated the question as being whether the employer was responsible for an ongoing situation or state of affairs in which the claimant was treated less favourably on grounds of race and/or sex than his or her comparator.[8]The Tribunal concluded that the claimant's allegations arose out of the same 'DPS'. Assuming for the purposes of the preliminary issue only that the claimant had as alleged been discriminated against since 1997 on the grounds of race and/or sex in the way in which the scheme was operated by the appellant the Tribunal found sufficient linkage for that discrimination to amount to an act extending over a period. They noted that the consultant members of the DMG remained largely unchanged over the period. That was a further factor linking the alleged acts with discrimination.[9]Having heard argument this morning, the difference between the parties comes down to a narrow issue. Mr Allen submits that in her originating application the claimant makes no complaint about the discriminatory operation of the DPS by the appellant in relation to her for the year 2001, nor could she, since the eligibility criteria that an applicant who was awarded at least one DP in the previous year could not apply in the next year, applied across the board. She could not in 2001 point to any comparator, actual or hypothetical, in respect of whom she was less favourably treated. Thus, he contends, there could be no continuing act, or to use the words of the legislation 'no act extending over a period' prior to 2002. He adds that this is the inevitable consequence of the way in which her case is put at Paragraph 6 of the originating application and the Tribunal is required to adjudicate only on the complaints which she makes see Champan v Simon 1994 IRLR124.[10]Miss Day characterises the complaint in a different way. She points to the opening words of Paragraph 6 of the particulars given under the originating application which read:
"The applicant submits that her contribution to the work of the respondent between 1996 and her retirement was worth significantly more than the 2 DP's. She further contends that a white consultant particularly a white male consultant would have been awarded significantly more than 2 DP's and is likely to have been awarded the maximum of 8 DP's over a similar period ."
[11]Paragraph 6 then continues at letters A-G setting out what are said to be specific acts of unlawful discrimination against her on the grounds of her race and sex. Those particulars relate to the result or results of each application made between 1997 and 2002 culminating in the Appeal's Panels decision on the 24 th June 2003, omitting any reference to the year 2001 when, for the reasons we have earlier mentioned, she was ineligible to apply. Miss Day submits that these are examples of the discriminatory operation of the DPS by the appellant on each occasion when she was eligible under the rules of the scheme to apply. At every opportunity the appellant had to discriminate against her under the scheme rules they did so.[12]Having considered the rivals submissions we prefer the analysis put forward by Miss Day. Adopting the approach from Lord Justice Mummery and Hendricks , there was here on the claimant's case a continuing state of affairs from 1997 until 2003 in which the appellant operated the 'DPS' in a way which treated her less favourably than her comparators. The individual instances of discrimination alleged were not unconnected or isolated acts but part of the continuing act extending throughout that period. It is in our view wholly artificial to treat the one year 2001 in which she was ineligible under the rules of the scheme to make application as somehow interrupting the period over which the discriminatory operation of the scheme extended. That was the view taken by the Employment Tribunal. It was correct in law. Accordingly the appeal fails and is dismissed. Cross-Appeal[13]Before the tribunal, the claimant raised an alternative argument that if the earlier incidents were out of time, then it was just and equitable to extend time under the escape clause contained in Section 68(6) of the Race Relations Act 1976 and the equivalent provision under Section 78 of the Sex Discrimination Act 1975. The Tribunal did not rule on that submission, it having found that the whole of the complaint was in time. Having dismissed the appeal it is equally unnecessary for us to rule on that matter and accordingly we make no order on the cross-appeal.