MRS J PUGH v THE NATIONAL ASSEMBLY FOR WALES [2006] UKEAT 0251_06_2609

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0251_06_2609Case No Appeal No UKEAT/0251/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J PUGHAPPELLANTTHE NATIONAL ASSEMBLY FOR WALESRESPONDENT
Before
His Honour Judge SerotaDate 26 September 2006
The ET dismissed as premature the Claimant''s application for disability discrimination because the application was made less than 28 days after the Claimant''s grievance had been raised in a letter dated 21 st April 2005. In fact there was an earlier letter that constituted a written grievance that was before the ET but its significance was overlooked. In the circumstances the Claimant was not precluded from arguing on appeal that the earlier letter constituted such a written grievance for the purposes of S32 and paragraphs 6 or 9 of Schedule 2 of the Employment Act 2002 .2. The ET had failed to have regard to the guidance set out in Hendricks v Commissioner of Police [2003] IRLR 96 as to the meaning of ''an act extending over a period '' set out in paragraph 3, Schedule 1 of the Disability Discrimination Act 1995 , and had taken too restrictive a view of the matter.The decision in Hendricks v Commissioner of Police is to be preferred to that in Robertson v Bexley Community Centre in relation to the meaning of ''an act extending over a period''. Hendricks v Commissioner of Police was not cited in the latter case.In cases where there is an issue as to whether an ET has jurisdiction to determine all or part of a claim because ''an act extending over a period'' is said to be a series of acts some or all of which occurred outside the 3 month limitation period, the Claimant must show a good arguable case or a prima facie case that the matters complained of did constitute such an act.

HIS HONOUR JUDGE SEROTA QC

Introduction

This is an appeal from the Employment Tribunal (ET) sitting at Cardiff (JL Thomas Chairman, sitting alone) on 6 October 2005. He determined that he had no jurisdiction to hear most of the Claimant’'s claim in relation to discrimination on the ground of disability and unfair constructive dismissal on the grounds that the claims relating to discrimination on the grounds of disability were brought out of time, there being no continuing act. In relation to unfair constructive dismissal, the claim was dismissed because the proceedings were premature having regard to the provisions of section 32 of the Employment Act 2002 .There was an application to the ET to review the decision which was refused on 31 January 2006. The appeal was referred to a full hearing by order of HHJ McMullen QC on 21 April 2006.In order to understand the context of this appeal it is helpful to set out certain relevant statutory provisions. Paragraph 3 of Schedule 1 to the Disability Discrimination Act 1995 provides that an Employment Tribunal shall not consider a complaint, such as brought by the Claimant, “"unless it is presented before the end of the period of three months beginning when the act complained of was done.”" Paragraph 3(3) provides for the purpose of subparagraph (1)- ….(b) “"any act extending over a period shall be treated as done at the end of that period”". The reference to “"any act extending over a period”" appears in other legislation relating to discrimination (including Sex Discrimination Act 1975 section 76(6)(b) and Race Relations Act 1976 section 68(7)(b).It is also helpful to refer to section 32 of the Employment Act 2002 which provides:
“"(2) An employee shall not present a complaint to an Employment Tribunal under a jurisdiction to which this section applies if — (a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies and (b) the requirement has not been complied with.”"
Schedule 4 makes plain that a constructive unfair dismissal is such a jurisdiction. Section 32(3) provides:
“"(3) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if — (a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with, and (b) less than 28 days have passed since the day on which the requirement was complied with.”"
Paragraphs 6 and 9 of part 2 to the second Schedule to the Employment Act 2002 refer to grievance procedures and in respect of either the standard procedure (paragraph 6) or the modified procedure in paragraph 9, the employee is required to set out his grievance in writing and send it to the employer. Either paragraph 6 or paragraph 9 applied in the present case. The effect of these paragraphs has been considered by a number of authorities; at this point in time I need only refer to Shergold v Fieldway Medical Centre [2006] IRLR 76 in which the EAT presided over by the then President, Burton J held that the requirements of paragraph 6 or paragraph 9 of Schedule 2 were “"minimal”" and required no more than that “"the grievance must be set out in writing”".

The factual background

I take this largely from the Judgment of the ET. The Claimant has the misfortune to suffer from a back condition and fibromyalgia. I understand fibromyalgia to be a widespread musculoskeletal pain and fatigue disorder, the cause of which is still unknown. On occasions she is confined to a wheelchair.In September 2000 she commenced work for the Respondent in the Assembly Compliance Office. During the course of her employment there were various issues relating to her working at home but the ET found all of these had been addressed by August 2004.On 29 September 2004 she commenced sickness absence and indeed never returned to work. The date of 19 November 2004 is a significant date because it is the date three months prior to her first grievance letter and the relevant act of discrimination must have occurred on or after that date unless it was an act extending over a period, for the purposes of bringing her claim within the Disability Discrimination Act . For the purposes of convenience I shall refer to an “"act extending over a period”" as a “"continuing act”".On 19 January 2005 the Claimant wrote her first grievance letter. It is headed “"Formal Grievances”" and addressed to Mr Bernard Galton of the human resources department of the National Assembly for Wales. The letter (page 63 of my bundle) sets out ten pages of complaints and raises issues, many of which the Claimant had previously raised. A number of these grievances are reproduced in her claim form. Receipt was acknowledged on 20 January 2004. On 10 February 2005 the Claimant received a response from Laurie Pavelin the head of the financial accountability division. He informed her that staff wishing to invoke the formal procedure were required to send a statement setting out their grievance within one month of the grievance events occurring. This requirement was said to be an important part of the procedure because the Respondent wished matters to be resolved in a timely manner. He did, however, say that if for whatever reason the Claimant had been unable to raise or communicate her grievance before the four week period he would be prepared to extend the period by a further eight weeks, so that all of the Claimant’'s current concerns could be addressed.On 7 March 2005 the Claimant resigned in circumstances she claims amounted to a constructive dismissal. On 8 March 2005 she wrote to Sir Jon Shortridge, the permanent secretary to the Respondent, in a letter headed “"Grievance”" (page 79). This letter refers to her earlier complaints and the fact that Mr Pavelin had told her that these were out of time because the Respondent only allowed a period of one month to consider those grievances:
“"I maintain that this policy is in itself discriminatory as it has a disproportionate impact on those who have a disability as it certainly does with me.”"
She went on to complain that the refusal of the Respondent to deal with the issues outlined by her “"portrays a deep rooted lack of appreciation of disability and deep rooted institutional discrimination.”" She went on to complain that the Respondent “"has done nothing to alleviate the difficulties of my work place. I maintain that there are substantial health and safety issues which have particular impact on wheelchair users and the Assembly has done nothing to alleviate this position…”" She went on to complain of institutional discrimination and a “"culture”". She concludes the letter:
“"In summation therefore I must now ask that the grievances formerly outlined be dealt with properly, that immediate adjustments to the work place and culture take place and that there is now a full investigation into the discriminatory culture that permeates every part of the Assembly work place.”"
On 23 March she was invited to attend a grievance meeting to discuss those matters that had occurred within the twelve weeks prior to 19 January. On 21 April 2005 she again wrote to Sir Jon Shortridge (page 84) and raised the issue of the time limit within which grievances could be brought as a separate grievance. She repeated that the time barrier had an undue effect on those who suffered from disability. She stated that the cumulative discrimination had gradually eroded her ability to work and it was the combination of discriminatory factors that had led directly to her resignation.
“"Whilst the individual complaints are in themselves serious it is the protracted and institutional discrimination that has worn me out.”"
She presented her originating application on 18 May 2005.The Respondent’'s reply of 21 June 2005 took the point that less than 28 days had elapsed from the letter of 21 April 2005 to 18 May so that the unfair dismissal claim was said to be premature.The Claimant had taken legal advice but was unable to fund representation at the ET. A skeleton argument had been prepared on her behalf by a solicitor and she received some further assistance. However, she was unrepresented at the hearing and must be regarded as a litigant in person.The pre-hearing review took place on 8 September 2005. The purpose was to determine which, if any, of the various allegations of discriminatory conduct were brought in time and whether there was a continuing act. The ET would also determine whether the proceedings had been commenced prematurely so as to deprive it of jurisdiction.I now turn to refer to the complaints made by the Claimant in her claim form. The claims may be summarised as follows:(1) “"Whilst working for National Assembly for Wales I believe I encountered disability discrimination from the outset.”"(2) The treatment she received resulted in her feeling resented in the work place.(3) She had applied originally for two positions within the Assembly but was only offered an interview for the lower position whereas according to the Respondent’'s policy she should have been guaranteed an interview for both positions by reason of her disability.(4) The venue for her interview was not “"disabled friendly”" and no additional provisions for access were made to assist her.(5) The first day she attended work she was told that the Department was unaware of her disability; she was sent home until a more suitable position was found.(6) The health and safety of disabled employees particularly in a fire situation was inadequate. She had raised concerns about these matters but nothing was done. Similarly the cinema was unsuitable for wheelchairs and those with hearing problems. She had raised this matter on a number of occasions because the cinema was used for seminars and mandatory courses.(7) Doors around the Assembly were very difficult for disabled employees to use. She had raised this as an issue also.(8) When she was signed off work by reason of fibromyalgia the BMI doctor had recommended that she work at home for two days per week; this recommendation took seven months to implement and the delay accentuated her fibromyalgia.(9) While she was off work her computer password was changed and she was put on a three month trial period to monitor her attendance rather than her performance. However she felt her ability to carry out work was on trial.(10) A temporary agency worker had been brought in to assist with her work while she was on sickness leave. On return to work the Claimant found that tasks for which she should have been responsible were given to the temporary worker and she considered she was made to feel like an interloper.(11) When working at home she was asked to record all calls, emails and work done, while others working from home did not have to do this. There were also occasions when she was able to work at home but not able to travel to the office. She was refused permission to work at home while other persons were treated differently.(12) When she asked if she could reduce her working to four days per week her request was refused although persons who were not disabled were allowed to work four days per week.(13) The Claimant applied for a post in the equal opportunities division which was summarily rejected.(14) She complained of the time barrier imposed by the Respondent for raising grievances about discrimination; as I have already noted she maintained that this time bar was itself discriminatory.(15) “"It must be concluded that the poor treatment received by me, and the complete lack of trust from my management team resulted in me having no other option but to resign.”" The “"straw that broke the camel’'s back”" was the failure to deal with my complaints and then telling me that I was out of time. Along with my reason given for constructive dismissal, the above are prime examples of disability discrimination, which are endemic, deep rooted and institutionalised within the NAFW.”"(16) Although I find no reference to it in the claim form there is also a complaint referred to by the ET of an audit ordered by her line manager Mr Robert Morris into her work in February 2004.The letter of 8 March to Sir Jon Shortridge was in the agreed bundle placed before the ET in a section marked “"Grievance Letters”". It is possible that as the letter of 8 March was not written within the formal grievance procedure it was considered by the ET not to be a grievance within the meaning of paragraph 6 or paragraph 9, but this is speculation. The changes to the law so as to require Claimants to exhaust a grievance procedure before commencing proceedings were relatively new and neither the Respondent nor the ET had the benefit of authorities such as Shergold . I note, however, that the letter of 21 April was also addressed to Sir Jon Shortridge and was considered to be a grievance letter for the purposes of paragraph 6 or paragraph 9. The ET may have had in mind that a letter raising a grievance needed to be more than “"minimal”" and required some degree of formality and reference to the grievance procedure.Mr Wallington conceded quite candidly and properly that had Shergold been decided the time point in relation to unfair dismissal would probably not have been taken. Further, if the Claimant had not herself referred to the letter of 8 March (as she does not appear to have done in this context) he would have considered it his duty as Counsel to draw that letter to the attention of the ET even though it was contrary to his client’'s interest. He considered it would have been his duty to the ET to have done so.

The decision of the Employment Tribunal

The ET (paragraph 4) noted that if an act was continuing after 1 October 2004 the Claimant’'s grievance letter of 19 January 2005 would, by regulation 15 of the ET rules 2004 extend the time limit by three months, provided that the grievance letter itself was within the original three month time limit. The Chairman noted that the date of the presentation of the claim was 18 May 2005 so working back six months from the date of presentation he arrived at the date of 19 November 2004 to which I have already referred. “"It follows that any matter prior to that date would be out of time.”"He went on to find that the last complaint raised by the Claimant in her evidence and pleadings “"could not have occurred after 29 September 2004”" because the Claimant took sickness leave and remained on sickness leave until the date of her resignation. He noted that a number of complaints had been addressed by August 2004.The Claimant’'s case was that all the matters to which she had referred were referable to a continuing act in that they were symptomatic of a lack of concern for disabled persons shown by the Respondent. The Respondent, however, maintained that the matters of which she complained were all individual acts which did not form part of a continuing act extending for the period of time such as to be regarded as having been done at the end of that period.The Chairman (paragraph 8) correctly reminded himself that it was for the Claimant to establish that her complaints fell within the jurisdiction of the Tribunal.He then had this to say in paragraph 9:“"9. I have had brought to my attention the case of Spencer v HM Prison Service in which it is provided that the test in deciding whether conduct extends over a period requires the Claimant to raise “"a good arguable case”". The Respondents says [sic] that I should therefore be looking for evidence of a policy, a practice or a regime. I find that a series of individual acts as set out in the ET1 does not indicate in itself that it is a continuing act reflecting a policy practice, or regime, even though extends over a period of years. The nearest that the Claimant comes to satisfying this test is her urging that the different acts of discrimination at different times amount to a practice. I do not agree with this. They amount, in my view, only to broad assertions, such as described in her submission namely “"endemic institutionalised discrimination.”" That in itself would not constitute evidence of any practice without more.”"He consequently concluded that all of her claims save those conceded by Mr Wallington in relation to disability discrimination were out of time. The only matters she could rely upon were those set out in paragraphs (6) (health and safety concerns, including cinema) and paragraph (7) (unsuitable doors for disabled users).The Chairman then went on to consider whether it was just and equitable to extend the Claimant’'s time; he came to the conclusion that it was not appropriate to do so. She was an intelligent and articulate person well able to understand the legal implications of any delay on her part on bringing a claim to secure her legal rights. From the Respondent’'s point of view the Claimant’'s complaints went back to the commencement of her employment and were now stale. There was a duty on a Claimant not to delay when faced with the question enforcing her statutory rights.He went on to note that certain of her complaints were premature because they had not been referred to in the January or April grievance letters and accordingly the Tribunal had no jurisdiction to entertain complaints under section 32 of the Employment Act 2002 in relation to complaints about the cinema, grievance procedure or institutionalised disability discrimination. (Mr Wallington has conceded that the Chairman was wrong in relation to the cinema). He then went on to consider whether the claim for unfair dismissal was premature. The grievance letter, in his opinion, was dated 21 April. The Claimant had only waited 27 days before presenting her claim. It was accordingly one day premature and she had fallen foul of section 32.The Chairman was asked to review his decision; he took the view that the application was simply an attempt to re-argue matters placed fully before him at the hearing of 8 September:
“"And in particular the content and significance of correspondence containing grievances which were referred to in argument and made available for me to consider.”"
He therefore considered the grounds under which a review could be granted under 34(3) of the Employment Tribunals Rules of Procedure were not applicable.I note that the Chairman appears to be saying that he had read all the correspondence containing grievances that had been made available for him to consider. I understand by this that he is stating that at the pre-hearing review he had read all of the relevant correspondence including the letter to Sir Jon Shortridge of 8 March 2005, which was in the trial bundle.

The appeal

A number of points have been raised on appeal but there are essentially two issues. It is submitted on behalf of the Claimant first, that the ET was wrong to find that the claim of unfair dismissal was premature because all matters complained of were referred to in the letter of 8 March 2005 (“"the prematurity point”"). Secondly, it is said that the ET mis-applied the concept of a continuing act (“"the continuing act point”").

The Prematurity point

The Claimant points to the letter of 8 March 2005 to Sir Jon Shortridge. She maintains that this letter clearly fell within the definition of ‘'grievance’' within paragraphs 6 and 9 of Schedule 2 to the Employment Act 2002 as explained in Shergold . This was very properly conceded by Mr Wallington. He conceded that had this letter been considered by the ET he would not be in a position to oppose the appeal because the letter was clearly within authorities such as Shergold but also Thorpe v Poat EAT/0503/2005, Galaxy Showers Ltd v Wilson [2006] IRLR 83 and Canary Wharf Management Ltd v Edebi [2006] IRLR 416 in which Elias J commented on certain dicta (which are not relevant for present proceedings) in Shergold .Mr Wallington in his skeleton argument submitted that for the Claimant to rely upon the letter of 8 March was to rely upon a point of law that had not been raised below. In his skeleton argument he drew our attention to a passage from the Judgment of Robert Walker LJ in Jones v Governing Body of Burdett Coutts cited with approval by Laws LJ in Unison v Leicestershire County Council [2006] EW CA Civ 825 :
“"20. In Jones v Burdett Coutts , which may fairly be said to be the leading authority, Robert Walker LJ as he then was attached particular importance to the prospect of fresh factual issues having to be determined. After citing earlier cases he said (44B-F):
“"These authorities show that, although the appeal tribunal has a discretion to allow a new point of law to be raised or a conceded point to be reopened, the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which, because the point was not in issue, were not sufficiently investigated before the industrial tribunal… In Secretary of State for Employment v Newcastle City Council the appeal tribunal presided over by Talbot J said that is was wrong in principle to allow new points to be raised, or conceded points to be reopened, if further factual matters would have to be investigated. In Hellyer Brothers Ltd v Mcleod this court, in a judgment of the court delivered by Slade LJ which fully reviewed the authorities, was inclined to the view that the test in the appeal tribunal should not be more stringent than it is when a comparable point arises on an ordinary appeal to the Court of Appeal… In this case the appeal tribunal… recognised that the consequence of allowing Mr Jones’'s appeal would be a new hearing with fresh evidence… It was therefore a case in which the appeal tribunal would have had to have exceptionally compelling reasons for taking such an unusual course.”"”"
The issue that Leicester County Council wished to raise was a construction issue that had not been raised below, and would require the case to be remitted for further consideration by the Employment Tribunal as it needed to be assessed against facts that had not necessarily been found. In those circumstances, the Court of Appeal held that the EAT was quite right to decline to allow the fresh construction to be taken.He also drew attention to Glennie v Independent Magazines (UK) Ltd [1999] IRLR 7. in which Brooke LJ referred to the decision of Knox J in Barber v Thames Television Plc [1991] ICR 253
“"15. Knox J was wise to leave open the possibility that, in the case of an unrepresented party, justice might demand the Employment Appeal Tribunal to put right what appeared to be a glaring injustice, even though, strictly, the evidence on which the unrepresented party sought to rely would have been available before the tribunal. However, I do not understand him to be envisaging the possibility that, when a represented party has fought and lost a jurisdictional issue on agreed facts before the tribunal, it should then be allowed to resile from its agreement and seek a new tribunal hearing in order to adduce evidence which would then be challenged, and invite the tribunal to decide the question of jurisdiction all over again on new facts. The general rules laid down by Arnold J in Kumchyk , about a party not being allowed to resile from what his representative has decided to do, are surely of equal applicability here.
16. I must stress that this is not a case in which Miss Glennie is being deprived by procedural quirk of being allowed to rely on an obvious knock-out point. If she was to be allowed to take the new point, the way would be wide open to a contest before the industrial tribunal based on issues of mixed fact and law, exploring the legal effect of what happened at a disciplinary hearing on 26 February, a letter her employers wrote to her the following day and her acceptance of a month’'s wages without working out her period of notice. It is certainly on the cards that that inquiry might have finished up with a conclusion that her employment terminated on 27 February, the day the letter was written; in other words, on the same basis as was common ground when the jurisdictional issue was first argued. I am of the clear view that the Employment Appeal Tribunal was wrong when it decided to remit the matter back to the industrial tribunal. It appears to have been misled by the sentence in Knox J’'s judgment in Barber , which suggested that it had a completely unfettered discretion to decide, in balance, whether justice required that the new point should be allowed to be taken. In my judgment, on established principles it was clearly wrong to allow this new point to be taken on appeal after the matter had been determined on a preliminary jurisdictional issue on the basis on which the applicant, represented by solicitors, had placed her application before the tribunal, and for those reasons I would allow this appeal.”"Laws LJ went on to say:
“"18. …The Employment Appeal Tribunal possesses a discretion, which must be exercised in accordance with established principles, to allow a new point to be raised before it for the first time. It is a general principle of the law that it is a party’'s duty to bring forward the whole of his case at the proper time. The reasoning of Robert Walker LJ in Jones v Governing Body of Burdett Coutts School [1988] IRLR 521 is, with great deference, consonant with this. A new point ought only to be permitted to be raised in exceptional circumstances, as Robert Walker LJ held at p.44B. If the new issue goes to the jurisdiction of the Employment Appeal Tribunal below, that may be an exceptional circumstance, but only, in my judgment, if the issue raised is a discrete one of pure or hard edged law requiring no or no further factual inquiry. There is a public interest beyond the interests of individual parties, that statutory tribunals exercise the whole of but exceed none of the jurisdiction which Parliament has given them upon such facts as are proved or admitted before them. I do not consider that this case falls within that category, even if the facts required to be ascertained in order to determine the date of the termination of the applicant’'s employment were now capable of agreement. On the facts agreed before the industrial tribunal, that tribunal was correct to hold that it lacked jurisdiction. It was therefore necessary to show exceptional circumstances if the Employment Appeal Tribunal was properly to decide to allow the new point to be taken. The Employment Appeal Tribunal identified no such exceptional circumstances. In my judgment, there are none.”"
However, when it came to submissions Mr Wallington accepted that the Claimant was not so much seeking to raise a new point of law as seeking to raise an issue of fact, and he sought to rely upon the rule in Ladd v Marshall [1954] 1WLR 1489 . There, the Court of Appeal laid down the rule that a party seeking to introduce evidence on appeal that was not adduced before the first instance Tribunal needed to show that the evidence could not have been obtained with reasonable diligence, that is was relevant and would probably have an important influence on the result of the case, even though not a decisive one, and that it was apparently credible. It is clear that the rule applies to the EAT and paragraph 8.2 of its Practice Direction specifically refers to the principle, and it is referred to in the standard form of order made on “"the sift”". However, this is not in my opinion a case of the Claimant seeking to rely upon fresh evidence. I consider it to be more likely than not that the letter was before the ET and was read by the Chairman, as he said in his review decision, without appreciating its significance. The reason for this may be that he was looking for a more formal reference to the grievance procedure. Nevertheless, I am satisfied that this letter which referred to all the grievances relied upon by the Claimant was properly before the ET which failed to take note of it. It is conceded that this letter was a compliance with the requirement to raise a written grievance not less than 28 days before commencement of proceedings and in the circumstances, the appeal on the prematurity point must be allowed.I do not need to deal with submissions that I should permit the letter to be relied upon because this is a case in which there is no factual dispute nor any additional costs. Nor do I need to have regard to the fact that the Claimant, had she been so advised, could have issued a fresh claim form when the point was taken by the Respondent.

The Continuing Act point

There are two aspects to the Claimant’'s case. First, was the ET correct in requiring that she needed to show a “"good arguable case”" and secondly, whether the decision of the ET was consistent with the decision of the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 .I consider it convenient to deal with the Hendricks point first. At one time, it was thought that cases such as Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 (a decision of Mummery LJ) and later cases had laid a gloss on the meaning of “"act extending over a period”" and that a “"continuing act”" as I have referred to it needed to take the form of some policy, rule or practice in accordance with which decisions are made from time to time. In Rovenska v General Medical Council [1998] ICR 85 , the Court of Appeal had referred to a “"rule, scheme, practice or policy”" and in Cast v Croydon College [1998] ICR 500 , Brooke LJ had referred to a “"policy or regime”". In Hendricks , Mummery LJ had this to say:
“"51. In my judgment, the approach of both the employment tribunal and the Appeal Tribunal to the language of the authorities on ‘'continuing acts’' was too literal. They concentrated on whether the concepts of a policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken, fitted the facts of this case: see Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 at paragraphs 21-23; Rovenska v General Medical Council [1997] IRLR 367 at p.371; Cast v Croydon College [1998] IRLR 318 at p.322 (cf of the approach of the Appeal Tribunal in Derby Specialist Fabrications Ltd v Burton [2001] IRLR 69 at p.72 where there was an ‘'accumulation of events over a period of time’' and a finding of a ‘'climate of racial abuse’' of which the employers were aware, but had done nothing. That was treated as ‘'continuing conduct’' and a ‘'continuing failure’' on the part of the employers to prevent racial abuse and discrimination, and as amounting to ‘'other detriment’' within s.4(2)(c) of the 1976 Act).
52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends of a period. They should not be treated as a complete and constricting statement of the indicia of ‘'an act extending over a period’'. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be sidetracked by focusing on whether a ‘'policy’' could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is ‘'an act extending over a period’' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.”"The trap into which I fell when sitting in the EAT in Hendricks was to focus on the question of whether one could determine a policy or perhaps some other rule, practice, scheme or regime, rather than look at the substance of the complaint and to ask whether the employer was responsible for a continuing state of affairs, an ongoing situation (so far as concerns this case) where disabled persons are treated less favourably.I note that in the case of Robertson v Bexley Community Centre [2003] IRLR 434 (a case where the Claimant was unrepresented) and where there was no reference to Hendricks, the Court of Appeal referred to Owusu :
“"in which it was held that to establish the continuing act it must be shown that the employer had a practice, policy, rule or regime governing the act said to constitute it.”"
Mr Wallington did not feel able to submit that Robertson should be preferred to Hendricks . The Court of Appeal in Robertson , as I have said, did not have Hendricks before it and did not in any way seek to distinguish Hendricks . I have no doubt that had Hendricks been cited in Robertson the Court of Appeal would have felt bound to follow it. Indeed on the facts of Robertson it would have made no difference had the Court of Appeal followed Mummery’'s LJ formulation. If I had to choose between the two authorities, I would unhesitatingly follow Mummery LJ in Hendricks .I note that it is relatively easy to get sidetracked into looking for a policy, regime, or practice. By way of example I note that ground two of the Notice of Appeal states that it is not for the ET to examine the merits of any particular allegation but to judge whether it is of a type that can amount to a “"practice”". I also note in the Respondent’'s skeleton argument, paragraph 15, that Mr Wallington maintains it is difficult to see how “"a delay in making an adjustment… can amount to an act continuing over a period extending after the adjustment is in fact made.”" This again seems to fall into the trap of seeking to treat an individual particular as not being capable of evidencing an act extending over a period; the case that has to be met, surely, is that the act complained of is a symptom of the continuing act. More significantly, the ET in paragraph 9 appears to have looked for a “"policy, practice or regime”" and found that the allegations made by the Claimant that were matters which she complained evidenced endemic institutionalised discrimination “"would not constitute evidence of any practice without more”" [my underlining]. The ET was referred to the decision of Rimer J in Spencer v HM Prison Service UK EAT/0812/02 in which relevant passages from Hendricks were cited but the Chairman made no specific reference to Hendricks nor to the helpful guidance given by Mummery LJ and he appears to have concentrated on identifying a policy practice or regime, something that Hendricks had warned against.The Claimant’'s submission was that taken as a whole, the various incidents or complaints which I have referred to and are set out in the claim form, suggested that there was a pattern of the Respondent failing to deal adequately with persons with disabilities. Alternatively, putting the matter another way, looking at matters in the round, the Claimant was saying that the Respondent as a whole did not meet the needs of disabled people. Miss Peter, who appeared on behalf of the Claimant submitted that if the ET were against her submission it should explain why; the reasons given were quite inadequate. It is unnecessary for me to set out the well-known and well-worn passages in English v Emery Reimbold and Strick Ltd [2003] IRLR 710 .She went on to submit that the ET had fallen into the trap referred to by the Court of Appeal of concentrating on finding a “"policy, practice or regime”". The ET, she submitted did not consider for example whether the matters of which the Claimant complained were indicative of a general lack of concern for disabled people. This was perhaps because the Chairman was looking for a policy.Mr Wallington submitted that there was no error of law in concluding that simply because allegations were made which could amount to continuing acts, including for example grievance policy time limits, earlier allegations also amounted to acts extending over a period. This submission is of course correct. However, the fact that some acts extend over a period does not mean that all allegations of discrimination were continuing acts. Nonetheless, the fact that a number of acts can be seen to be continuing acts might provide a background from which an employment tribunal can infer that other discriminatory acts are not simple discrete acts but examples of a situation in which disabled persons are less favourably treated. Mr Wallington argued that the reasons were sufficient even if “"sparse”"; see paragraph 12 of his skeleton argument. He submitted the ET was entitled to find that the matters complained of were individual acts and reject the submission that there was, as the Claimant had submitted, endemic institutionalised discrimination. This was no more than a broad assertion.

Conclusions on Continuing Act point

In my opinion the ET appear to have concentrated too much on the question of whether there was a policy practice or regime. Rather it should have looked at the allegations in the round (which included at least four allegations that were continuing (health and safety matters, cinema, doors, and grievance policy) and ask whether looking at matters in the round, the employer was responsible for a continuing state of affairs, an ongoing situation where disabled persons were treated less favourably. It is perfectly possible that the allegations that have been made do reflect such a state of affairs. I am concerned that in this case the ET appears to have dealt with the matter contrary to the guidance given by Mummery LJ and has also failed to give an adequate explanation as to why it rejected the Claimant’'s case. I accept that the ET does not appear to have considered whether the allegations made were indicative of a general lack of concern for disabled people, because it was looking for some policy, regime or practice. The appeal on this ground must also be allowed.It must be pointed out that the allegations made by the Claimant have not been the subject of any judicial determination. At this stage the allegations are simply that, allegations only and the Employment Tribunal will have to determine whether or not the Claimant can establish them to be factually correct.

The Threshold point

The reference to “"a good arguable case”" comes from the judgment of Rimer J in Spencer where he stated that “"we are satisfied that her pleading raises a good arguable case… there was ‘'an act extending over a period.’'”"In Hendricks at paragraph 29, Mummery LJ cited from the Employment Tribunal without demur:
“"29. We have therefore determined whether the applicant has made out a prima facie case that there was a continuing act…”"
Mr Wallington pointed out that the Claimant herself had sought to persuade the ET that it was a “" prima facie ”" case of there being a continuing act.I am satisfied that there is little difference between a requirement to show a prima facie case and a good arguable case, at least in so far as this case is concerned. I am also satisfied that where there is an issue as to whether an act is a continuing act or not, a Claimant must show a good arguable case or prima facie case that the allegations made do constitute such an act extending over a period. I derive this from the authorities to which I have referred. A lesser standard will not suffice. Of course at the stage of any preliminary investigation the ET will not be concerned so much with the substantive merits of the allegations, but whether they can be seen at least prima facie to be part of an act extending over the period. On this point, therefore, I am against the Claimant.I do not need to deal with the Claimant’'s submissions in relation to extension of time but I feel bound to say that it seemed to me that had I been satisfied the ET had dealt with the continuing act point in accordance with Hendricks , I would not have been able to fault its exercise of discretion.I wish to conclude this Judgment by expressing my gratitude to both Counsel for their assistance. Ms Peter appeared pro bono and the EAT will always express its gratitude to those advocates who give up their time to represent unrepresented parties. I also wish to express my great thanks to Mr Wallington in particular for his candour which was in accordance with the best traditions of the bar.In the event, therefore, the appeal will be allowed both on the continuing act point and the prematurity point and will be remitted to the ET for a further pre-hearing review in accordance with this Judgment. In the circumstances the hearing should be before another Chairman.

Cited in 1 later judgment