APPEARANCES
| For the Appellant |
MR F McCOMBIE
(of Counsel)
Law for All
Southall Law Shop
37 Hunt Road
Southall
Middlesex
UB2 4QB |
| For the Respondents |
MR W HOSKINS
(of Counsel)
The Treasury Solicitor
Room 544
Queen Anne's Chambers
28 The Broadway
London
SW1H 9JS |
MR JUSTICE MAURICE KAY: There are before us both an appeal and a cross-appeal arising out of decision of an Employment Tribunal sitting at London (South) on 15th October 1999.
- The appellant, Mr Pharoah, has taken proceedings against his former employers, HM Prison Service, claiming unfair dismissal and race discrimination. The hearing before the Employment Tribunal on 15th October 1999 was on a preliminary issue on matters of time and jurisdiction. It is not necessary for us to go into the background facts in much detail. Mr Pharoah commenced employment at Brixton Prison on 6th January 1997 on a one year fixed term probationary contract. On 5th January 1998 that contract was renewed for a further year. In early 1999 he was told that his second contract would now expire on 5th April 1999 and that it would not be renewed and, indeed, on 5th April 1999 his employment came to an end as a result of that non-renewal. He commenced his proceedings by lodging an Originating Application on 1st July 1999.
- There is no doubt that Mr Pharoah's application in respect of unfair dismissal was in time. The preliminary issue was concerned with whether or not his claim of race discrimination was in time or, if it was not, whether time should be extended. The primary provisions of the Race Relations Act 1976 on these matters are contained in s.68. S.68(1) states:
"An employment tribunal shall not consider a complaint … 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; …"
S.68(6) states:
"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."
S.68(7) provides that for the purposes of s.68:
"(b) any act extending over a period shall be treated as done at the end of that period;"
- When the matter came before the Employment Tribunal the Employment Tribunal had of course first to acquaint itself with the allegations that were being made. So far as race discrimination is concerned they were set out in five numbered paragraphs in Particulars of Claim that were annexed to the Originating Application. They were as follows:
"(i) I believe that I suffered direct discrimination in that I was dismissed from my post at HM Prison on 5.4.99 and was not offered a permanent post despite reassurance from my employer that I would be.
(ii) I believe that other white members of staff were offered permanent positions and kept on as permanent members of staff while I was not. This was despite my satisfactorily completing my probationary period and performing well at my six month appraisals. I was therefore treated less favourably than others due to my race.
(iii) During my employment at HM Prison Brixton, I was also a victim of other incidents of discrimination. For example in September 1998, we were told that night staff would have to do some day duties. I requested that I remain on night duties but was informed that this would not be possible. I spoke to a Prison Officer known to me by the name of Mr Betrich. Mr Betrich informed me that another Senior Officer called Mick Shaw who was also my line manager, had 'blocked' my request to work at nights because he did not like me because I was black.
(iv) I also believe that the real reason that I was not able to transfer to HM Prison Holloway, in late 1998, was because Mick Shaw did not supply me with a good reference because he did not like me due to my colour.
(v) Myself and other black and Asian members of staff were also subject to racist comments while working at HM Prison Brixton. I had allegations made against me by other members of staff that I was a drug dealer and pimp which I believe were made due my colour or race."
- The application having been lodged on 1st July 1999, the primary three month period therefore began to run on or about 1st April 1999. Clearly the allegations numbered (iii) and (iv) specifically preceded that date and we infer that the more general allegations in paragraph (v) at least commenced prior to that period. When the Employment Tribunal came to consider these matters it began to do so by referring to the definition of discrimination and particularly by referring to discrimination of a continuing kind which extends over a period of time, in so doing the Employment Tribunal referred to Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 and Chattopadhyay v Headmaster of Holloway School [1982] ICR 132.
- It is apparent from the following passages of the Decision that the Employment Tribunal formed the view that the real issue in this case was the dismissal "and perhaps the rejection of the transfer shortly before his dismissal." The outcome of the Decision was that the Employment Tribunal do not seem to have concluded that there was any evidence of continuing discrimination, straddling the date of 1st April 1999; they looked at the individual allegations; they exercised discretion under s.68(6) so far as the refusal of the move to Holloway was concerned, thus enabling the appellant to advance his case not only by reference to the dismissal but also by reference to the refusal of a move to Holloway; but they declined to exercise discretion in his favour under s.68(6) in relation to his complaint about working on day shifts and about his more general allegations of racial abuse.
- Before us today Mr McCombie has put the appellant's appeal under three headings or grounds. First, he complains that the Employment Tribunal made errors of law when considering whether or not there was continuing discrimination in this case of a kind which would cause s.68(7)(b) to bite and enable all the aspects of the continuing discrimination to fall within the primary period as a result of the continuing act being treated as being done at the end of the period.
- One of the parts of the decision of which Mr McCombie was particularly critical, was paragraph 12. It reads:
"In this particular case, additionally it seems to us that even if we accepted for the purposes of argument the proposition that some kind of "racist culture" or "racist regime" might be established, we find that the problem for the Applicant is that in fact in the middle of the period about which he is complaining and his Counsel contends that there was an ongoing racist regime, his contract was in fact renewed and it is difficult to see in our finding how any Tribunal can draw any adverse inference or any inference one way or the other from that kind of evidence."
Mr McCombie submitted that if and to the extent that paragraph 12 purports to deal with the question of continuing discrimination rather than simply with the question of just and equitable discretion, it is legally erroneous. We are satisfied that paragraph 12 does purport to deal with the question of continuing discrimination. On that basis it is difficult to see, even within the Decision's own terms, how it can be taken into account as an impediment to a finding of continuing discrimination at least in relation to the matters of the arrangement of shifts which arose long after the renewal of the contract in January 1998. Moreover, it seems to us inevitable, that the miscellaneous allegations of racial abuse contained in paragraph (v) relate, at least in part, to a time after January 1998 and for that reason as well we do not think that the reasoning of paragraph 12 can be upheld. In our judgment, the approach of the Employment Tribunal did not do justice in its legal analysis to the question of the possibility of continuing discrimination in this case.
- Mr McCombie's second ground of appeal relates to the question of day shifts and amounts to a complaint that in deciding to exclude that from consideration at the substantive hearing the Employment Tribunal fell into the error of forming a view as to the merits of that particular allegation. There is no doubt that they did form an adverse view as to the merits of it; however, they appear to have done so in the context of considering whether or not to exercise discretion under s.68(6). It seems to us that if it is simply a matter of discretion then consideration of a perception of the merits is not outwith the matters which an Employment Tribunal can take into account. Accordingly, if this ground of appeal stood alone we would not be impressed by it.
- The third ground of appeal also relates to the exercise of the just and equitable discretion and is the form of a complaint that the Employment Tribunal acted inconsistently in reaching conclusions as between the move to Holloway and the question of the shifts. Mr McCombie points out that the senior officer, Mr Shaw, to whom we have referred, was a significant feature in relation to the dismissal, the refusal of the move to Holloway and the argument about shifts. We of course make no findings or come not even to preliminary conclusions about the substance of these complaints. However, it is a fact that so far as they are allegations, Mr Shaw is a theme running throughout them and he was also the appellant's line manager. If this appeal turns simply on matters of discretion, we say at once that it would seem to us to be a little odd to include one aspect of Mr Shaw's involvement and to exclude another. However, if we were concerned solely with discretion, even though that might at first sight appear a little odd, it would be difficult to go behind the exercise of discretion, having regard to what we have already said about the permissibility of considering the merits in relation to one of the two allegations and also the fact that the Tribunal did give reasons for the differential exercises of discretion, to which Mr Hoskins drew our attention.
- Putting all that together, our conclusion is therefore this. Notwithstanding Mr Hoskins' attempts to justify the findings in relation to continuing discrimination, we have come to the conclusion that his submissions about paragraph 12 are not right. In our judgment, this was clearly a case which called for detailed consideration as to whether there was an allegation of continuing discrimination in this case. The period involved being a matter of two years at most, and less than one year as far as the more specific allegations are concerned, whilst not short, is not especially long by the standards of cases of this kind. We have come to the conclusion that really the only correct conclusion that could be reached in this case is that it does embrace an allegation of continuing discrimination which all the allegations set out in paragraphs (i) to (v) reflect. We simply consider it to have been legally erroneous to distinguish between the allegations in the way in which the Tribunal did. We therefore conclude that it was a matter not of discretion as to whether to allow the matter to proceed in relation to allegations preceding 1st April; it was a matter which lent itself only to the conclusion that the allegations were allegations of continuing discrimination.
- In those circumstances, the appeal will be allowed. We shall substitute our own decision about the allegation of continuing discrimination for that of the Employment Tribunal and remit the matter to a differently constituted Employment Tribunal so that the substantive hearing can take place. It was originally estimated to have a hearing requirement of three days. If the implications of our decision are such that the parties think that that will have to be extended, they should make an appointment with the Employment Tribunal for a directions hearing as soon as possible.
- Thus far we have said nothing of the cross-appeal. In a sense, the cross-appeal was bound up with the fate of the appeal. The essence of the cross-appeal was that to the extent that the Employment Tribunal had decided to exercise discretion against the allegation about day shifts, it should have applied the same reasoning as a matter of discretion to the move to Holloway. Well, in view of the way we have approached the case, effectively on the basis of non-discretionary matters, that no longer arises and the cross-appeal is accordingly dismissed.
