Alam v London Probation Trust (Race Discrimination : Continuing act) [2012] UKEAT 0016_12_1503

EAT
Alam v London Probation Trust (Race Discrimination : Continuing act)
[2012] UKEAT 0016_12_1503 · 2012-03-15
[1]This is an appeal against the decision of Employment Judge Glennie, sitting in the London Central Employment Tribunal, on a Pre‑Hearing Review and sent to the parties on 4 October 2011. The Judge held that there was no reasonable prospect that a Tribunal would find the alleged acts of harassment that pre‑date the Appellant’s dismissal on 25 November 2010 could be found to be a continuing act including the dismissal itself. Accordingly, the complaint in respect of those allegations of harassment excluding the dismissal was therefore presented out of time, and it would not be just and equitable to extend time in respect of the allegations pre‑dating the dismissal on 25 November 2010. Mr David Stephenson appears for the Appellant; Ms Rehana Azib appears for the Respondent.[2]This appeal is concerned with the application of section 68 of the Race Relations Act 1976 . Section 68, so far as is relevant, states:
“(1) An Employment Tribunal shall not consider a complaint under section 54 unless it is presented to the Tribunal before the end of— (a) the period of three months beginning when the act complained of was done […]. (6) A court or tribunal may nevertheless consider any such complaint or claim 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) (b) any act extending over a period should be treated as done at the end of that period.”
The facts[3]The Appellant commenced employment with the Respondent as a probation prosecutor on 1 August 2003 in its Marsham Street office in Westminster, where she remained until her contract of employment was terminated with immediate effect on 25 November 2010. By a claim presented to the Tribunal on 24 February 2011 the Appellant brought claims of race discrimination contrary to section 1(1)(a) of the Race Relations Act 1976 and unfair dismissal contrary to section 94 of the Employment Rights Act 1996 . In so far as her claims relate to her dismissal, it was common ground between the parties that these complaints were presented at the Tribunal within the three‑month time limit. The appeal[4]The Appellant alleges that numerous acts of race discrimination took place from 2005 onwards. There are 18 listed in her claim form to the Employment Tribunal; new allegations were brought in by way of amendment, and there are now 31 complaints set out in a revised spreadsheet. Many concern allegations against Ms Natalie Sharpe, her line manager from December 2008, and Mr Rob Clarke, a more senior manager, who had previously been the Appellant’s line manager. It is the Appellant’s case that the harassment Ms Sharpe and Mr Clarke subjected her to was racially motivated and part of a concerted effort to terminate her contract of employment.[5]The Appellant advances two grounds of appeal. Mr Stephenson submits, first, that the Tribunal misunderstood and/or misapplied the law concerning an act extending over a period by failing to hold that the detriments suffered by the Appellant during the period 2006 to 21 October 2010 and her dismissal on 25 November 2010 were interlinked, in that they formed a continuous sequence of events culminating in her dismissal; and second, that the Tribunal erred when exercising its discretion as to whether it was just and equitable to extend time under section 68(6) by failing to take into account material considerations when considering the balance of prejudice.[6]I shall consider each in turn. As to the first ground, referred to as the continuing act ground, I have regard to the legal principles set out by the Court of Appeal in Hendricks v The Commissioner of Police for the Metropolis [2002] EWCA Civ 1686 Mummery LJ that the correct approach to applying section 68(7)(b) was that one should not focus too narrowly on matters such as whether a policy could be discerned. Mummery LJ stated at paragraph 52:
“The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over 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 side‑tracked by focussing 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 there 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.”
[7]At paragraph 12 of the Reasons the Judge referred to these passages in Hendricks , and in the light of them decided that he had to consider the arguments in this case on the basis of the Appellant’s pleaded case, including the contents of the spreadsheet. That, in my view, was the proper approach to adopt. The test to be applied at a Pre‑Hearing Review to determine whether the Claimant has produced sufficient evidence of a continuing act was considered by the Court of Appeal in Aziz v FDA [2010] EWCA Civ 304 . Jackson LJ said at paragraph 35:
“The Court of Appeal considered the correct approach to this matter in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 . […] Hooper LJ gave the leading Judgment, with which Hughes LJ and Thorpe LJ agreed. Hooper LJ stated that the test to be applied at the pre‑hearing review was to consider whether the claimant had established a prima facie case. Hooper LJ accepted counsel’s submission that the ET must ask itself whether the complaints were capable of being part of an act extending over a period.”
[8]Jackson LJ continued at paragraph 36:
“Another way of formulating the test to be applied at the pre‑hearing review is this. The claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs: see Ma v Merck Sharpe and Dohme Ltd [2008] EWCA Civ 1426 at paragraph 17.”
[9]The Appellant’s case put at its highest is that the harassment Ms Sharpe and Mr Clarke subjected the Appellant to was racially motivated and part of a concerted effort to terminate her contract of employment, and, pursuant to that aim, attempts to initiate disciplinary proceedings against her were made on or about 23 December 2009. Further, Ms Sharpe instigated a formal disciplinary investigation in March 2010, which, the Appellant contends, was sanctioned by Mr Clarke and ultimately led to her being dismissed on 25 November 2010. Mr Stephenson relied upon items 11, 17 and 22 in the revised spreadsheet as indicating the nature of the Appellant’s case on the pleadings. However, item 11 refers to a disciplinary matter in December 2009 that was then not pursued. Item 22 is an allegation by Mr Clarke that the Appellant took unauthorised leave on 28 April 2010, and that she failed to meet a reporting requirement on 6 April 2010. Those are different issues from the one that led to the Appellant’s dismissal, which related to a failure to generate a high‑risk warrant. The only item of the three that does bear on that issue is item 17, which notes that Ms Sharpe sent the Appellant an email stating that her explanation with regard to the warrant issue was unsatisfactory and further investigation was warranted. That was in March 2010, and it was that issue that led to the disciplinary hearings, appeal and the Appellant’s dismissal.[10]I bear in mind that before the Tribunal the Appellant was a litigant in person and that she was assisted by Mr Hussain as a McKenzie friend. However, it is clear from paragraphs 14 and 15 of the Tribunal’s Reasons that the Judge pressed Mr Hussain to explain how the Claimant’s case was put in terms of any link between the harassment that was said to be carried out by Ms Sharpe and Mr Clarke and the two decisions on the original disciplinary hearing in the appeal. At sub‑paragraphs 14.1‑14.3 the Judge considered and rejected the matters put forward by Mr Hussain. At paragraph 14.1 it is recorded:
“Ms Sharpe, he said, gave adverse evidence to the panel and was motivated by considerations of race, as was alleged in respect of her alleged harassment of Ms Alam. However, it seemed to me that if that was so, then that might have constituted part of a continuing act by Ms Sharpe. It is not pleaded in that way, but in any event I would not, as I find, bring the decision by the panels into play as part of a continuing act including the earlier alleged harassment.”
[11]Paragraph 14.3 reads:
“Mr Hussain said that Mr Clarke and/or Ms Sharpe were responsible for pushing the matter towards a disciplinary hearing and that they had in effect planned and sought to have Ms Alam dismissed. The claim had not been pleaded in that way. However, if that was so, then that again might show in my judgment continuing acts or a continuing act that included all the acts of Mr Clarke and/or Ms Sharpe. It would not have meant that the decision to dismiss made by other individuals was part of an act of discrimination.”
[12]In support of his submission that there was a continuing act including the dismissal itself Mr Stephenson relied on a passage in the Judgment of Elias J, as he then was, in Williams v Y K K (UK) Ltd UKEAT/0408/01, where at paragraph 23

the Judge said:

“We recognise that that is not necessarily, in all cases, the end of the matter, because someone who is unaware of factors that might demonstrate an improper discriminatory influence, may nevertheless be influenced by discriminatory considerations if he or she receives and acts on evidence which is itself tainted by discriminatory considerations. For example, a manager who is not in the least influenced by racial considerations may, nonetheless, make a decision which is affected by such factors if he acts on the basis of a report which is made by another manager who is influenced by such considerations. The decision in that case will be tainted.”
[13]Applying that principle, Mr Stephenson submitted that the decision to dismiss the Appellant was arguably tainted by the actions and evidence of Ms Sharpe and Mr Clarke. They, individually or together, instigated the complaint that led to an investigation that, relying on what they said, led to a disciplinary hearing at which Ms Sharpe gave evidence, which led to a decision to dismiss. However, as Ms Azib observes, nowhere in the pleadings or the revised spreadsheet is any case advanced that the decision to dismiss was based on evidence tainted by discriminatory considerations. It was the individual who investigated the complaint made by Ms Sharpe and Mr Clarke who decided to refer the matter to a disciplinary hearing, yet that person did not feature in any allegations made by the Appellant. Neither the investigator nor the panel that conducted the disciplinary hearing, nor the individual hearing the appeal, are alleged to have been influenced tainted by discriminatory considerations. At paragraph 15 the Tribunal concluded:
“I therefore found that Ms Alam could not demonstrate the continuing discriminatory state of affairs. The pleaded case I find involves to distinct strands. One if the earlier alleged harassment by (predominantly) Mr Clarke and Ms Sharpe. The other is the later decision to dismiss made by an unrelated group of people, not on the pleaded case implicated in the alleged activities of Mr Clarke and Ms Sharpe.”
[14]The Judge was not satisfied that the Appellant could establish any causal link between the decision to dismiss with any prior allegations of discrimination or harassment. I accept Ms Azib’s submission that the Tribunal applied the correct legal principles, and, that being so, in order to succeed on this appeal the Appellant would have to show an overwhelming case that the Employment Tribunal reached a decision that no reasonable Tribunal on a proper appreciation of the evidence and the law would have reached. The approach in Yeboah v Crofton [2002] EWCA Civ 794 was applied to a decision made at a Pre‑Hearing Review that acts did not constitute a continuing act in Lyfar (see the Judgment of Hooper LJ at paragraph 23). In my judgment, the Tribunal correctly applied the relevant legal principles and reached a conclusion that on the evidence was plainly open to it.[15]Turning to the second ground, the just and equitable ground, the Tribunal considered the exercise of its just and equitable discretion at paragraphs 17‑29 of its decision. Mr Stephenson submits that the Tribunal failed to take account of the relevant consideration, namely the Appellant’s claim for harassment concerns a number of specific allegations made against Ms Sharpe and Mr Clarke that resulted in her being subjected to a number of detriments. Such claims over a prolonged period tend to attract the largest awards for injury to feelings. Mr Stephenson submitted that if the Appellant succeeded in making out all or most of the individual allegations, she could expect an award near the higher end of £18,000 to £30,000, applying the principles laid down in Chief Constable of West Yorkshire Police v Vento (No. 2) [2003] ICR 318 . That may be so; however, it is clear that the Tribunal considered this question of prejudice. At paragraph 27

the Judge said:

“It is often the case, and I find it to be the case here, that there is prejudice either way to the parties, according to how I decide this point. I find that there clearly would be prejudice to Ms Alam if I decide not to extend time because she would not be able to bring to the Tribunal the complaints about harassment that relate to the period 2006‑2010. However, it is also relevant in my judgment that this prejudice would be mitigated or limited in the sense that she is able, without any exercise of discretion by this Tribunal, to take forward her complaint regarding the dismissal. That includes her complaint of race discrimination and/or victimisation in relation to the dismissal. It seems to me that, this complaint, if made out, would carry with it the main financial consequences for Ms Alam, in the obvious sense that it is a result of that decision that she lost her employment and the income from it.”
[16]In my view, it is clear that the Judge considered the financial prejudice to the Appellant and the decision to exclude the earlier claims of harassment.[17]Next, Mr Stephenson submits that the Tribunal failed to consider whether a fair trial was still possible. Again, in my view

the Judge did give proper consideration to this point; at paragraph 28 he said:

“[…] in general terms I find it likely that the cogency of the evidence, and this applies to both parties, is likely to have been affected by the passage of time since 2006.”
[18]Further, Mr Stephenson submits that when considering the balance of prejudice the Tribunal wrongly concluded that if the allegations of harassment were left in, there would be a longer hearing with greater costs and a greater use of resources. He contends that in order for the Appellant to show that her dismissal was an act of race discrimination and/or victimisation she would need to show that Ms Sharpe and Mr Clarke’s instigation of the disciplinary process in March 2010 and its continued pursuance was motivated by racial considerations. The only way, he says, the Appellant would be able to show that the decision to dismiss her was tainted by race discrimination is by relying upon the allegations of harassment in support of her complaint.[19]I reject this submission. There is, in my view, an important difference between adducing evidence of particular complaints as background material, as, Mr Stephenson says at paragraph 34 of his skeleton argument, he would wish to do, and including those complaints as substantive issues to be determined in the claim. As Ms Azib observes, in the former case the time and costs spent on examining such evidence can be controlled so as to be commensurate to the relevance of those matters to the unfair dismissal claim that is within time; were the court to allow substantive claims to be pursued in relation to those matters, they would have to be examined in full at a final hearing. The Appellant’s challenge on the just and equitable ground is essentially a perversity challenge. In my view, the matters relied upon by the Appellant, individually and cumulatively, full far short of making out this ground. Conclusion[20]I consider the Tribunal gave proper consideration to all relevant matters and reached a conclusion having conducted a balancing exercise that, on the evidence, it was fully entitled to arrive at. For the reasons I have given, this appeal fails.