Appeal No. EAT/0567/02/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 February 2003

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR P GAMMON MBE
MR D NORMAN

MR B MARSH	APPELLANT

AIB GROUP (UK) PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G BIGNELL
(Solicitor)
Just Employment Solicitors
1 Farnham Road
Guildford
Surrey GU2 4RG	
For the Respondent	MS I SIMLER
(of Counsel)
Instructed By:
Messrs Bird & Bird
Solicitors
90 Fetter Lane
London EC4A 1JP	

MR JUSTICE BURTON (PRESIDENT):

1	This is the hearing of an appeal by the Appellant, Mr Bradley Marsh, against the unanimous conclusion of the Employment Tribunal sitting at Southampton, that his application for race discrimination against the Respondent, AIB Group (UK) Plc, more colloquially known as “Allied Irish Bank”, was out of time.

2	The circumstances are rather unusual here, and not to be repeated, it seems to me, if at all possible, at the Employment Tribunal stage, because there appears to us to be a very substantial question mark, over the basis on which the Employment Tribunal was, in fact, acting, when it reached the decision it did.

3	The discrimination alleged was by the Bank against the Appellant, as being English, and it was alleged that, over a period, two managers of the Bank, who are named as original Respondent, but against whom proceedings are no longer pursued, had discriminated against him in various ways.  

4	But the issue, as can be seen, was whether that discrimination was too long ago to be complained about when the Appellant brought his Originating Application in August 2001.  The Appellant, in fact, last worked at the Bank in January 2000.  Thereafter, he went off sick, and his contract of employment eventually terminated in May 2001, when he retired on the grounds of ill-health, and so that period of sickness pay continued from 1 February 2000 until his retirement in May 2001, and thus any actual acts of harassment, such as he was alleging by the managers, could not have taken place and, on the facts of this case, did not take place, once he ceased actively to attend for work.  He made such allegations of harassment and bullying and, not least for the reasons that we have given, they were dismissed as out of time by the Tribunal.  But he also made an allegation that one of the acts of discrimination against him consisted of a policy decision by the Bank to pay him, as an Englishman, less than his fellow-managers of Irish nationality or origin.

5	The Respondent sought a preliminary hearing as to whether the application was out of time.  There are, of course, two necessary decisions to be made at such a preliminary hearing.  

(1)	Is the application out of time? - and that depends upon a finding as to the date or, in some cases, last date, of the cause of action, from which three months must then run, and 

(2)	If out of time, are there grounds, on the just and equitable basis, for an extension of the time to bring the Originating Application, in the particular circumstances of the case?

6	This Tribunal had to deal with both of those issues.  It resolved the second issue firmly against the Appellant that, if there was a necessity for an extension of time, no extension would be given, and there is no appeal against that finding.

7	The Tribunal resolved the first issue against the Appellant also, concluding that the last date of the discrimination effectively ended when he ceased to work with the Bank, on 31 January 2000, and not at the termination of his employment, and it is in respect of that conclusion of the Tribunal that there is this appeal today.

8	The peculiarity of the hearing before the Tribunal, to which we referred earlier, arises in this way.  There has been a considerable number of cases, to all of which our attention has been drawn by the parties in this case, in which the issue has been, by reference to an alleged act, or series of acts, or in some cases, a policy by the employer, as to whether the alleged discrimination was a one-off act, or a number of one-off acts, or whether they were, or amounted to, a continuing discrimination, such that complaint can be made of the earlier acts, right up until the three months after the termination of the continuing discrimination, which is normally, in these kind of cases, the termination of the employment.

9	If this was a case in which there was a continuing act of discrimination, then Mr Bignell, on behalf of the Appellant, argued before the Tribunal, unsuccessfully, there was a continuing discrimination, which went on until the termination of the employment, and thus the Originating Application was not out of time.

10	If, however, as Ms Simler of Counsel submitted, the act or acts alleged were a one-off act or acts, then the last such act, or acts, must have taken place, at the latest, when the Appellant ceased to be actively employed at the premises of the Respondent.  That was the issue that was required to be resolved by the Employment Tribunal on head 1, so to speak, and then, as we have indicated, it had to proceed to decide head 2, whether there should be an extension.  

11	The Appellant attended at the Employment Tribunal and, I am told, so did witnesses, who were proposed to be called by the Respondent.  Mr Bignell indicated, on his client’s behalf, that he did not propose to call his client.  In those circumstances, I am told by Ms Simler, she did not propose to call her client either, resting on the absence of evidence by the Appellant;  but she put in certain documents.  Those documents we have been shown today, and they indicate that in respect of the two salary reviews, which occurred after 31 January 2000, when the Appellant was away on sick pay, both of them purport, on their face by reference to the letters before us, to have been simply administrative;  in the sense that there was, in March 2000, a 2.75% general increase, to be applied to the previous salary, and in March 2001, a 3% general increase to apply, based on cost of living increases.  That was the state of play before the Employment Tribunal.  

12	In the cases to which we have referred in which decisions have been made by Employment Tribunals as to whether the discrimination was one-off or continuing, and, of course, all the ones we have been shown are situations in which the matter was subsequently taken to appeal (there must have been many in which they were not), it is apparent that at least in some, if not all, of them, oral evidence was called at the Employment Tribunal.  

13	The most recent of those cases is Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96.  In that case it is clear that the Applicant, at first instance, gave oral evidence and, indeed, produced a lengthy Witness Statement.  The Employment Tribunal concluded that, on the basis of her case, there was a continuing discriminatory policy, on the part of the Respondent.  The Employment Appeal Tribunal allowed an appeal, on the basis that there was only a series of one-off acts, and the Court of Appeal restored the conclusion of the Employment Tribunal.  In paragraph 48 the Court of Appeal, in the judgment of Mummery LJ, states:

“On the evidential material before it, the tribunal was entitled to make a preliminary decision that it has jurisdiction to consider the allegations of discrimination made by Ms Hendricks.  The fact that she was off sick from March 1999 and was absent from the working environment does not necessarily rule out the possibility of continuing discrimination against her, for which the Commissioner may be held legally responsible.”

14	It is clear that the imposition of unfavourable terms as to pay, can amount to a continuing act, as opposed to a series of one-off acts;  that can be derived, if it needed authority, from the speech of Lord Griffiths in Barclays Bank plc v Kapur [1991] IRLR 186, at paragraph 20:

“... the employer would be guilty of racial discrimination if he did not pay the same wages to both coloured and white employees.  If he continued to pay lower wages to the coloured employees it would be a continuing act lasting throughout the period of a coloured employee’s employment within the meaning of subsection (7)(b).”

15	The Appellant did not give any oral evidence, and, consequently, the strength and nature of that evidence could not be assessed.  Ms Simler, in the absence of that evidence, did not call any evidence from the Respondent, and the same can, therefore, be said in relation to the Respondent.  All that the Tribunal had was thus the three letters in March 2000, and March to May 2001.  The Tribunal set out, in material parts, the following, at paragraph 4:

“This case arose as a result of matters as outlined in the submission prepared in writing by Mr Bignell.  The Applicant had been a Bank Manager with the Respondents for a number of years.  He was, towards the end of his career, and certainly by 1995, only one of a few English employees amongst the rest, who were Irish, certainly in his position as a Bank Manager.  This was not challenged by the Respondents.  His case was that he had been discriminated against because he was English and that his Irish colleagues in the same grade were treated differently.  He considered that he had been harassed and bullied, as outlined in Mr Bignell’s submission and, further, one of his main complaints as to discrimination was his salary scale.  It was maintained by Mr Bignell during his submission that the Applicant had been kept on a lower salary than Irish Managers on the same grade.”

Then, in paragraph 6, the Tribunal said this:

“The Respondents’ case and submissions were that they denied that there had been any discrimination.  The Tribunal will deal with the full extent of their submissions in a moment.  Suffice it to say that the Applicant’s case was that he had raised on numerous occasions at his assessments over the years from about 1992 complaints that he did not consider his salary to be a fair salary when compared to other Irish personnel.  These it was maintained on his behalf were acts of a continuous nature of discrimination.”

And then, the Tribunal goes on to deal with the allegations of harassment and bullying complained of, by two line managers, who were both Irish, which had allegedly led to his final breakdown, causing him to stop working on 31 January 2000.

16	In paragraph 8, the Tribunal recites that:

“The Applicant had been in receipt of full pay from 1 February 2000 during which time he had been away sick.  The Applicant, through his advocate, maintained that the harassment had been continuous in regard to the bullying and that there had been harassment throughout, even during his time when he was away sick.  That could not possibly be so because he was not at work during the period 1 February 2000 and when he retired on ill-health in May 2001.  The second argument put forward in submission by the Applicant’s advocate was that, although he had been receiving his full pay, this pay was less than his colleagues would have received and was therefore a continuing act of discrimination from 1 February 2000 until he received his retirement pension and ceased work for the Respondents.”

At paragraph 10, the Tribunal recites the Respondent’s submission:

“For the Respondents it was suggested to the Tribunal the last submission could not be so that his pension was related to his last salary and could not be classed as a continuing discrimination or a discrimination standing in its own right.  The Tribunal accept and accede to the submission of the Respondents on that point.  The pension was calculated on the salary last paid to the Applicant.  If an employee is retired at the same time on early retirement and has a higher salary, then clearly their pension would be higher.”

17	There is no appeal against the conclusion that the act of commuting the salary to a pension, which took place on 1 June 2001, after the employment terminated, cannot amount to a separate act of discrimination.  The central paragraph, which has formed the basis of consideration on this appeal, is paragraph 15, which reads as follows:

“The Tribunal in this case have two considerations.  Firstly, when was the earliest date that the Applicant should have made his application.  In the Tribunal’s finding on the facts we heard and we have not referred fully to the Respondents’ submissions but in accordance with the submissions Ms Simler made to us, the earliest time that the Applicant could have made an application based on discrimination was 1 February 2000.  At that time he of course had gone on sick leave, but it would not have stopped him having some advice and issuing.”

The conclusion by the Tribunal, as we have indicated, that he could have brought the proceedings, and that it would not be just and equitable to extend any period, is not challenged.  The Tribunal then continues:

“If it was a question of a discriminatory act in regard to his pay, then the finding of the Tribunal is that that would have occurred at his last pay review, which would have been in 1999, the pay review having taken place in the April [that is, April 1999].  The next time when the Applicant might have been able to suggest to a Tribunal that it would have been just and equitable to let him apply would have been in the Tribunal’s finding no later than when the correspondence was first commenced by the union and probably the latest would have been when the union write and say that ‘he is now fit enough to deal with his own complaints’ and no application was launched at that time.”

18	In the consideration by the Tribunal, of whether it would be just and equitable to extend the time limit, they state this, in paragraph 16:

“We had submissions from the Applicant’s advocate, who suggested that here there was a clear policy or regime, even if it was not in writing.”

The Tribunal’s decision, as Miss Simler accepts, is not entirely as clear as one would have liked, in its differentiation between the two issues, (1) which they ought to have dealt with first and separately - When the date was when the cause of action accrued or came to an end, if it was a continuing act, so that one then adds the three months from that date:  having found that, (2) Whether it would it be just and equitable to give any necessary extension.

19	But, in relation to that first issue, Miss Simler submits, there was a finding of the Tribunal that there was a series of single discriminatory acts, the last of which was the last pay review, dominated by one or other of the allegedly discriminating line managers, which was January 1999;  and, thereafter, anything that occurred was simply consequential upon the last act of discrimination, as opposed to there being a continuing policy, continuing through until the termination of his employment.  She submits that that finding cannot be interfered with.  It is, she says, a finding of fact.

20	It might be that, if there had been oral evidence called, on one, or other, or both sides, it would have been easier to categorise that as a finding of fact, but there was not, and we are left in the difficult jurisprudential position that a strike-out, as effectively this is, although a strike-out only on a time basis, must be taken on the basis of accepting the Applicant’s case, as put forward, unless, of course, it has been tested at a preliminary hearing with evidence, and disbelieved.  Ms Simler says there was no oral evidence given at the Tribunal, and thus nothing in opposition to which her client could have given evidence.

21	A case such as this, where there is no oral evidence called, must be based, as we conclude, on the assumption by the Tribunal that the Applicant’s case is accepted.  On that basis, the Tribunal rejected, as out of time, the allegations of harassment and bullying, and there is no appeal against that.

22	We have already indicated that, equally, there is no appeal against any case made, by reference to benefits, bonuses, or pension, either because they are out of time or because, on any view, they are consequential upon the main case.  The main case that is, and was, made, relates only to pay.  

23	Ms Simler submits that that case on pay stands, or falls, as the Tribunal concluded, on the existence of the two allegedly discriminating managers who are, and were, complained of by the Appellant, as having treated him badly, either by harassing or bullying him, or by presiding over an unfair salary review.  On any basis their influence and activity came to an end when, first of all, the first of them left, and then, eventually, when the Applicant went off sick, and, coincidentally, it was only shortly after that that the alleged second discriminating line manager left as well.  So it is common ground that, by the time it came to the pay review in March 2000, both managers had gone, and the Appellant was off sick, and, submits, Ms Simler, by reference to the letters, all that occurred in March 2000 was an administrative continuation of the earlier situation.  If there had been discrimination by the two managers, either in relation to the position of the inappropriate salary or otherwise, that had ceased, and all that had occurred, particularly as the Appellant was off sick, was a continuation of the consequences, and not a continuation of the discrimination itself.

24	In those circumstances, Ms Simler submits, this case falls plainly on the one-off side of the line, with continuing consequences, as very helpfully illustrated by Sougrin v Haringey Health Authority [1992] ICR 650.  That is a case in which the Court of Appeal, in a judgment given by Balcombe LJ, with which the rest of the Court agree, very clearly differentiated between a one-off decision not to up-grade the complainant, while up-grading a white comparator, with continuing consequences, as against continuing discrimination;  and Balcombe LJ, sets out, at page 657 B, by reference to the particular facts of that case, as distinguishing it from a situation in which there was a policy of continuing discrimination, the following:

“In the present case the complaint made, and on the facts correctly made, by the applicant was that she was graded E while her white comparator was graded F.  This was a ‘one-off’ act.  The continuing consequence of that act is that the applicant is paid less than Ms Mobey.  This is precisely what the industrial tribunal said:
‘We find that the discriminatory act complained of was the decision to dismiss the appeal.  This was not a continuing act but its consequence was that the applicant was paid wages at grade E, some £2,000 a year less than grade F’.
That finding contains no error of law.”

25	Mr Bignell, on the other hand, submits that this is not a one-off act, perpetrated by two line managers, with continuing consequences after the employee went off sick.  Ms Simler points out that, not only were the 2000 and 2001 increases by reference to a general increase, but that, by that time, the Appellant was off sick, and not attending and, indeed, that the two line managers complained of had gone, and thus, although it is right to say, by reference to Hendricks, an alleged continuing discrimination can continue while the employee is off sick, that was not the case here in relation to any of the conduct complained of.  

26	It is quite plain that had evidence been given by the Appellant, he would have concentrated his fire on the two managers, and he would, no doubt, have been cross-examined in that regard, and there might, or might not, have been findings of fact helpful to the decision-maker, but it did not occur.  

27	What we are left with here is the Originating Application, and the Originating Application does assert, in paragraphs 11 and 12, the following:

“11	In 1992, the Applicant was employed as Senior Banking Manager Grade 3, his previous equivalent grade in Business Finance, but below the salary range for the new job.  Irish managers were much better paid than English managers.  At this time, many instances were cited by staff of this disparity.
12	The Applicant complained about his salary to his new line manager, an Irishman, David Petrie, who agreed to increase his salary, but still below the scale.  The Applicant refused to sign his offer letter because his salary was much lower than the minimum for his grade.  David Petrie told the Applicant that if he argued the point further he would be transferred and ‘either piss or get off the pot’.”

28	The case there pleaded, together with a whole range of other allegations, all of which are out of time, is that there was a policy, by the Bank, to pay English managers, such as the Appellant, (there may not have been any others) less than Irish managers.  That may have been spearheaded by the two allegedly discriminating line managers, the first of which there referred to was Mr Petrie.  But it is not his case, as pleaded, on the face of it, that the policy was limited to the line managers and, indeed, as was pointed out by Mr Bignell, during the course of argument, and as Miss Simler felt constrained to accept, a decision on a pay review by a line manager would, at least be likely to be put before higher authority for potential review.

29	If, therefore, the position were, and we must say that we see little support for it, and it may well be a case that is unsupportable to take further to any hearing, that an English manager, such as the Appellant, was as a matter of policy being paid £x, and all other managers, being Irish, were being paid £2x, then that would be likely to have been seen by the management, and at least arguably, could be said to have been a policy of the Bank which was both endorsed during the employment of the two line managers and continued after their departure, even though the Appellant was by then away on sick leave.

30	This is not a case in which the Employment Tribunal acted with regard to its powers under Rules 4 and/or 15 to strike-out a case as having no reasonable prospect of success.  It is a wholly unparticularised case, as it stands at present, and one which may fall, though we express no view on it, to be considered within that area by an Employment Tribunal, even before the hearing, and/or to fail if pursued to a hearing, and there may even be risks as to costs, if the matter is pursued.  But, as pleaded, it is an allegation of a policy by the Bank, and we conclude that, on that basis, the Tribunal should not have reached a conclusion that that was not what the Appellant was asserting, but should rather have accepted that that was what he was asserting, stripped off all the other matters, as indeed they did, as being out of time, but left to be tried, at least subject to any further application, the validity of the assertion that there was a policy by the Bank such as is complained of.

31	That alleged policy falls, as we conclude, on the Barclays Bank plc v Kapur side, together with the decisions in Cast v Croydon College [1998] IRLR 318 and Hendricks, as opposed to the Sougrin side of the line, at least as pleaded and asserted, and we conclude that, in those circumstances, the Tribunal erred in their approach.  They were not in a position to make findings of fact.  If they did, and it is not entirely clear that they did, except in relation to that part of their judgment which is not appealed, namely whether it was just and equitable to allow extension, or if they did not, in our judgment it was not open to them to conclude that this assertion by the Appellant was out of time.  If he is right that there was a continuing policy by the Bank, albeit spearheaded by the line managers, at least arguably it continued until the employment terminated and, in those circumstances, without giving any kind of fair wind behind the success of the application, in the event, that trimmed down allegation, limited to the issue of pay only, must be permitted to proceed, and is in time, and in those circumstances, and to that extent, this appeal is allowed.