Sougrin v Haringey Health Authority [1992] IRLR416
Owusu v London Fire & Civil Defence Authority [1995] IRLR 574
Cast v Croydon College [1998] IRLR 318
Calder v James Finlay Corporation Ltd [1989] IRLR 55
Barclays Bank v Kapur [1991] IRLR 136
Tyagi v BBC World Service [2001] IRLR 465
It is widely known that Applicants in discrimination cases (sex, race and disability) have three months following an act of discrimination within which to lodge a Tribunal application, and that where the discrimination is continuing then the three month time limit continues for as long as the discrimination continues. But what is a continuing act of discrimination, and what is the difference between a single act of discrimination which is repeated, a single act with continuing consequences and a continuing act? Is there any legal difference between a continuing act which affects employees, and one that affects job applicants?
These issues crop up on a regular basis in reported discrimination cases, their frequency no doubt reflecting the difficulty that many applicants face in lodging Originating Applications within a three month time period.
In Owusu v London Fire & Civil Defence Authority, Mr Owusu claimed that he had been racially discriminated against in that he had failed to be promoted and shortlisted for promotion and also had failed to be allowed to act up on a number of occasions extending over a five year period. He argued that these incidents amounted to an "act extending over a period" under section 68(7) of the Race Relations Act 1975 so that the three months ran from the end of that five year period. The Tribunal found that all the incidents were one-off acts, and all outside the three month time period. The Employment Appeal Tribunal disagreed: "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."
A distinction is drawn in the Owusu case between a continuing policy (as was relevant in his case) and a one-off act with continuing consequences. This contrast is well-illustrated by the race case of Sougrin v Haringey Health Authority where Ms Sougrin's complaint was a failure to be upgraded in a regrading exercise. She argued that there was a continuing act within section 68 of the Race Relations Act in that as a result of the failure to regrade she suffered ongoing wage loss. The Tribunal and Employment Appeal Tribunal both rejected her case on the basis that the correct analysis was that there was a one-off re-regrading decision which had continuing consequences, and not a continuing policy.
A further distinction has to be drawn between separate acts underpinned by an ongoing policy (as in Owusu), and several acts which in effect are no more than a repetition or confirmation of an original act (which may well be out of time). This issue arose in Cast v Croydon College. Ms Cast had her application for part time work refused prior to her absence on maternity leave. She repeated her request on her return from leave. Her request was reconsidered and again refused, as a result of which she resigned. Her Tribunal application for indirect sex discrimination was lodged within three months of her resignation but more than three months from the refusals. The issue was whether there had been a continuing act by her employers (which would have made her claim in time), or an initial act simply followed by a confirmation (which would have meant the second refusal was irrelevant and therefore her claim out of time) or an initial act followed by a different, subsequent act (which would have meant the second act was only just out of time). The Court of Appeal decided that in these circumstances the employer's position in refusing Ms Cast part time work was a continuing act. They make it clear that a one-off act might be an application of an established discriminatory policy, and it did not matter that such a policy was not formal nor expressed in writing. They also decided that the second reconsideration of Ms Cast's request was a separate act, precisely because it was a reconsideration, and the fact that the employer had taken no new material into account was not relevant.
Cases relating to contractual terms raise similar issues. In Calder v James Finlay Corporation Ltd, the Employment Appeal Tribunal had little difficulty in concluding that a mortgage subsidy policy available to male employees, but not female staff, represented an act extending over Ms Calder's entire period of employment enabling her to pursue a claim that had been lodged after her resignation. The House of Lords in Barclays Bank v Kapur reached a similar conclusion where the Bank refused to credit the Applicants' previous service in Kenya and Tanzania in their calculation of pensionable service under the UK pension scheme: "It seems to me that the right to a pension forms part of the overall remuneration of the employee and that if his pension entitlement can be shown to be less favourable than that of other employees this disadvantage continues throughout the period of his employment."
The distinction here between Calder and Kapur on the one hand and Sougrin on the other, appears to be that in Calder and Kapur it was the contractual terms themselves which discriminated, whereas in Sougrin it was the original regrading decision which was discriminatory.
The recent Court of Appeal decision of Tyagi v BBC World Service addresses the implications of "continuing discrimination" under the Race Relations Act where the Applicant is a job applicant. Mr Tyagi claimed that the BBC were operating an ongoing discriminatory recruitment policy so that his Tribunal application presented a year after his last rejection for a post was in time. This argument was rejected by Tribunal, EAT and Court of Appeal: discriminatory practices apply to employees, not job applicants.
Where there is a discriminatory policy it is for the CRE to take action. A job applicant can only pursue a Tribunal claim in respect of a specific rejection. It appears from this therefore that the continuing policy argument is only available to employees such as Mr Owusu, Ms Cast etc, and not a job applicant like Mr Tyagi.
A reasonably consistent pattern emerges from these cases as to what the law is. However, at the end of the day all the cases tend to turn on their own particular facts, making it essential that in discrimination cases where time limits are at issue all relevant facts regarding the sequence of events must be made available to Tribunals.
Of course, even if an application is out of time the Tribunal retains a powerful residual discretion to allow late claims to proceed if it considers it just and equitable to do so. It is a two stage process -firstly calculate the applicable time limit using the principles set out above. Then if the claim has been lodged outside the primary time period, consider what evidence and arguments can be used to demonstrate that it would be just and equitable to extend time to validate the late complaint. A future article will examine the Tribunals' use of their powers to extend time in discrimination cases.