Appeal No. UKEAT/0448/06/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 November 2006
Judgment handed down on 6 February 2007

Before
THE HONOURABLE MR JUSTICE KEITH
MR T HAYWOOD
MS P TATLOW

DR QING-PING MA	APPELLANT

MERCK SHARP & DOHME LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Dr Qing-Ping Ma
(The Appellant in Person)	
For the Respondent	Mr Declan O’Dempsey
(of Counsel)
Instructed by:
Messrs Taylor Vinters Solicitors
Merlin Place
Milton Road
Cambridge CB4 ODP	

Summary
Race discrimination - Continuing act 
Whether Tribunal applied correct test

THE HONOURABLE MR JUSTICE KEITH

Introduction
1.	The Claimant, Dr Qing-Ping Ma, is employed by the Respondent, Merck Sharp & Dohme Ltd (“the company”), as a research fellow.  He has worked for the company in that capacity since 1997.  His ethnic origin is Chinese, and he claims that various employees of the company have discriminated against him over the years on the ground of his ethnicity.  He presented a claim under the Race Relations Act 1976 (“the Act”) to the Employment Tribunal on 22 August 2005.  

2.	The company denies that any of its employees have discriminated against Dr Ma on the ground of his ethnicity.  But in any event the company claims that the overwhelming majority of Dr Ma’s complaints cannot be pursued because the time for bringing them has expired.  That issue was directed to be determined at a pre-hearing review as a preliminary issue.  At the pre-hearing review, a Chairman of the Employment Tribunal sitting alone decided that all of Dr Ma’s complaints which related to acts of discrimination which were alleged to have occurred on or before 22 May 2005 were out of time, and that it was not just and equitable that they should be considered out of time.  He excepted certain complaints which related to events which had occurred on or before 22 May 2005 but after 23 February 2005, because they came within the extended time limit provided for by regs. 15(1)(b) and 15(3)(b) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the Dispute Resolution Regulations”).  There is no cross-appeal against that finding, and we say no more about it.  

3.	Dr Ma now appeals against the ruling that those of his complaints, apart from the excepted complaints, which related to acts of discrimination which were alleged to have occurred on or before 22 May 2005 were out of time.  He is not appealing against the finding that it was not just and equitable that they should be considered out of time.
  
The relevant statutory provisions
4.	The relevant statutory provisions are well known.  They are contained in section 68 of the Act.  So far as is material, they provide as follows:
“(1)	An Employment Tribunal shall not consider a complaint [of racial discrimination in the employment field] 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 …
(7)	For the purposes of this section - … 
(b) any act extending over a period shall be treated as done at the end of that period …”

5.	There has been considerable judicial debate about when an act could be said to extend over a period.  Barclays Bank Plc v Kapur [1989] ICR 753 was the first in a series of cases in which the courts have held that an act will be regarded as extending over a period, and therefore be treated as having been done at the end of that period, if it is part of a continuing state of affairs, for example if the employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the employee concerned.  However, in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, the Court of Appeal warned that this approach should not be applied to literally.  As Mummery LJ said at [52]:  “The concepts of policy, rule, practice, scheme or regime in [Kapur and other] 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’.”  The real question, he said at [48], is whether “the numerous alleged incidents of discrimination are linked to one another [so] that they are evidence of a continuing discriminatory state of affairs covered by the concept of ‘an act extending over a period’”, or whether, as he said at [52], they are “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 nature of the hearing
6.	It is important to remember that the ruling which is the subject of this appeal was made on a preliminary issue at a pre-hearing review.  The Chairman was not coming to a final decision on whether Dr Ma’s complaints were out of time.  He was only deciding whether it was “reasonably arguable” that the acts of which Dr Ma complained extended over the period ending on 22 May 2005, which was three months before the claim was presented.  To assist the Chairman in that endeavour, Dr Ma had been ordered at a previous case management discussion to provide a witness statement setting out the evidence on which he was relying to show that the acts of discrimination were linked to each other.  The Chairman’s conclusion that Dr Ma’s complaints, save for the excepted complaints, were out of time was in effect a finding that the contrary was not reasonably arguable.

The nature of Dr Ma’s complaints
7.	At an earlier case management discussion, Dr Ma had been identified as making 12 separate complaints.  This categorisation was adopted by the Chairman.  He considered each of these complaints separately, having first set out, by reference to the Kapur and Hendricks cases, his understanding of the legal principles which had to be applied.  His summary of the legal principles cannot be faulted.  The critical question is whether he applied them properly to the complaints which Dr Ma was making.  

8.	Dr Ma contends that the 12 separate complaints which had previously been identified could be divided into three different groups.  We propose to deal with each group of complaints in turn.  

The first group of complaints
9.	The first group of complaints covers those complaints which Dr Ma contends do not relate to individual acts at all – whether or not they were linked to each other – but which represent a continuing state of affairs.  There were two such complaints: (i) a complaint that he was not provided with adequate and appropriate support staff, and (ii) a complaint that he was assigned inappropriate work.  

10.	(i)  The lack of support staff.  The Chairman identified six occasions on which, according to Dr Ma, he had not been provided with the support staff he needed.  The Chairman expressed his conclusion on this issue as follows: 

“20	On the face of the matter there is a series of individual acts by individuals.  In my judgment there could only be a continuing act within the meaning of the section if those individuals had acted in concert in some way or under some practice or policy directed to achieving some form of common aim.
21	There is no allegation made on Dr Ma’s behalf in his claim to the Tribunal that this was so. Although orally at the hearing he alleged that there was some form of practice or even conspiracy against him amongst the managers at the Respondent’s business he had to agree with Mr O’Dempsey that he had not made that allegation in his claim form to the Tribunal. It is by the allegations in the claim form that I must judge this matter rather by any oral allegations added to that at the hearing before me. I am satisfied that Dr Ma has not raised in his claim to the Tribunal any allegation of such a procedure, policy, conspiracy or similar matter. In those circumstances, I am satisfied that it is not reasonably arguable that this can have been a continuing act and I am satisfied that it is clear that this was a series of individual acts by individual people.
22	Even if I am wrong about this and there was a continuing act on Dr Ma’s pleaded case, the last event in the series of events comprising it occurred in 2004 when Dr Simpson assigned a heavy workload to him without giving him proper staff. I do not consider that the allegation can correctly be put on the basis that there was a day-to-day occurrence of a discriminatory act of the nature of Dr Ma being in a situation of having inadequate support staff. It seems to me that the act complained of is his managers imposing on him a workload and inadequate support staff as described in paragraph 16 of the witness statement. In those circumstances, it follows that even if I am wrong about whether or not this was a continuing act that the date on which the last event in the series that could be relied upon occurred was: at some point in 2004. At the very latest therefore, even if that act or event had occurred on 31 December 2004, the usual three month period would have expired on 31 March 2005. The extended period would therefore have expired on 30 June 2005 so that the claim would be out of time even if there had been a continuing act.”

11.	In our judgment, there are a number of flaws in this approach.  First, although Dr Ma gave examples of specific occasions when senior members of staff had had the opportunity to provide him with the support staff he needed but had not done so, these were, he says, simply examples of a state of affairs which existed throughout his employment.  The “act” of which he was complaining was that state of affairs, rather than the particular instances he gave of the occasions when this state of affairs could have been brought to an end.  We do not think that the Chairman addressed this argument.  He simply assumed that the instances upon which Dr Ma relied were “a series of individual acts”.  But if Dr Ma’s argument is correct, there was no need for the Chairman to consider whether the specific occasions to which Dr Ma referred were isolated or unconnected with each other, or whether they were linked to each other.  There is no doubt that Dr Ma is now saying that the act of which he complains was the continuing lack of support staff.  Having re-read Dr Ma’s witness statement with care, we think that this was what Dr Ma was alleging at the time, and the argument should have been addressed.

12.	Secondly, the Chairman regarded as decisive the fact that in his ET1 Dr Ma did not allege that the six specific acts of alleged discrimination upon which he relied in this category were linked.  Although Dr Ma made that allegation orally at the hearing, the Chairman regarded himself as obliged to ignore that, because it was “by the allegations in the claim form” that the Chairman thought he had to determine the issue.  We do not wish to underestimate the importance of an ET1 setting out the whole of a Claimant’s case so that the Respondent knows the nature of the case it has to meet, and the Tribunal can thereafter readily identify what the issues are.  But it is important to remember two things: pleadings in Employment Tribunals are intended to be informal, and they are often prepared by claimants without the benefit of professional advice.  They should therefore not be approached in too technical a manner, and the Tribunal should look at them in that spirit.  Substance in this context is much more important than form.  Looking at Dr Ma’s ET1 overall, it is true that it did not state in so many words that the acts of discrimination of which he was complaining were all linked, but it is not difficult to infer that that is the underlying complaint which he was making.  It would have been better if he had spelt it out in plain language, but it emerges, we think, if you read between the lines.  But even if it could not be inferred that Dr Ma was asserting in his ET1 that the acts of alleged discrimination were linked, that omission was cured by what he told the Chairman at the pre-hearing review.  He was simply telling the Chairman what he would have put in his ET1 had he realised that it should have been spelt out there.

13.	Finally, the Chairman regarded as decisive the fact that the last act of alleged discrimination in this category occurred sometime in 2004.  It may have been open to him to conclude that this was an isolated example of Dr Ma not being provided with the support staff he needed, and did not illustrate a continuing practice of not providing him with adequate or appropriate staff, though we reach no conclusion about that.  But whether or not it was an isolated occurrence in the context of the other allegations of discrimination in this category, the incident had to be considered in the context of all the acts of discrimination alleged by Dr Ma.  So the fact that it occurred in 2004 and was well outside the time limit was not the end of the matter.  It had to be considered in the context of the later acts of alleged discrimination in other categories to see whether it was linked to any of them.  The Chairman did not do that.

14.	(ii)  The assigning of inappropriate work.  The Chairman understood that complaint as relating to the time following Dr Ma’s transfer to the Robotics Department in August 2002.  He regarded the complaint as an aspect of a separate complaint which Dr Ma was making about his transfer to the Robotics Department – which undoubtedly was a specific act rather than a continuing state of affairs – but the basis of the Chairman’s decision on the complaint about inappropriate work being assigned to Dr Ma was that the assignment to him of work of a particular kind when he moved to the Robotics Department was “a specific act”, by which the Chairman meant, we presume, that the assignment of work of that particular kind to Dr Ma was an isolated act unconnected with any of the other acts complained of.  

15.	In fact, Dr Ma was not alleging that it was only when he was in the Robotics Department that he had been assigned inappropriate work.  In para. 4 of his witness statement he complained of having been assigned inappropriate work in the period covered by his 1998 appraisal.  But the real point is that a fair reading of paras. 12-14 of Dr Ma’s witness statement shows that Dr Ma was not only complaining of being assigned inappropriate work following the decision by Dr Paul Whiting to transfer him to the Robotics Department.  He was also complaining of the assignment of inappropriate work to him by Dr Peter Simpson throughout his time there, the suggestion being that even if the consequence of his transfer was that he might initially be employed on repetitive bench work, the fact that he continued to be assigned tasks which were inappropriate to his position and expertise was not attributable to his transfer.  That was the context in which the Chairman had to consider whether the acts complained of were a series of specific acts (in which case Dr Ma would have had to establish a link connecting them) or whether the complaint, properly analysed, was a continuing state of affairs (in which case there would not have been a series of individual acts for the Chairman to consider).

The second group of complaints
16.	The second group of complaints covers those complaints which Dr Ma accepts were a series of specific acts but which, when taken together, are alleged to show the existence of a “discriminatory practice or policy” extending over the period of his employment.  There are seven such complaints: (i) he received appraisals which did not truly reflect his performance, (ii) he received lower salary increases than others who were similarly qualified and did not receive a salary increase at all in 2004 and 2005, (iii) he was not promoted when he should have been, (iv) it was regularly alleged that he lacked inter-personal skills and could not work with or supervise other employees, (v) he was excluded from groups dealing with core projects, (vi) he had a performance improvement plan imposed on him, and (vii) disciplinary proceedings were commenced against him.  

17.	Although the last two of these complaints related to one specific act, the others related to a series of them.  For example, there were six occasions on which Dr Ma alleged that he had received appraisals which he did not feel truly reflected his performance, and three occasions on which he alleged that he had been excluded from groups dealing with core projects.  Having said that, the complaint that he was regularly criticised for his lack of inter-personal skills (complaint (iv)) was essentially a repetition of what had been said about him in his performance appraisals, and was effectively included in complaint (i).  And since performance appraisals were a factor taken into account when staff were considered for promotion, the complaint of non-promotion (complaint (iii)) was treated by the Chairman as simply the consequence of complaint (i).  

18.	The Chairman found that the complaints that Dr Ma had not received a salary increase in 2005 (part of complaint (ii)) and that disciplinary proceedings had been commenced against him (complaint (vii)) had been presented in time because they related to acts which had occurred within the extended time limit provided for by the Dispute Resolution Regulations.  But he held that the other complaints in this group of complaints had not been presented in time.  In the case of some of these complaints, the reasons which the Chairman gave were that (a) Dr Ma had not alleged in his ET1 that the acts complained of had been linked, and (b) the latest act of alleged discrimination in these categories of complaints took place in 2004.  That applies to complaints (i), (ii), (v) and (vi).  We have explained in paras. 12 and 13 above why these reasons are not sufficient reasons for concluding that a particular complaint was not presented in time.  

19.	There is another important point we should make.  The Chairman said in respect of many of the acts complained of that Dr Ma had not made any specific allegations of collusion or conspiracy between individuals which would have amounted to concerted action on the part of his managers to treat him in a discriminatory way.  That caused the Chairman to conclude that the allegations which Dr Ma was making – at the hearing if not in his ET1 – did not amount to “a complaint of any policy, principle, practice, assumption or other similar factors such as would indicate a continuing act” on the part of the company.  These were the Chairman’s words when dealing with complaint (i) about Dr Ma’s performance appraisals, but he used similar language when dealing with complaints (ii), (iii) and (v).  

20.	The problem with this approach is that it focused too much on Dr Ma’s inability to point to specific features about each of the acts complained of from which collusion or conspiracy in respect of that act could be inferred.  Dr Ma’s case was that it was only when you looked at the whole of his treatment by his managers throughout his employment that a pattern of less favourable treatment emerges.  In the absence of any other reason for that, his ethnicity was alleged to have been the link between all the specific instances of less favourable treatment on which Dr Ma relied.  The Chairman’s consideration of that issue was flawed by what he presumed to be the need for Dr Ma to point to something in each category of complaint which was capable of giving rise to an inference of collusion or conspiracy.

The third group of complaints
21.	The third group of complaints covers two complaints which Dr Ma again accepts were specific acts, but which, when taken together, are alleged to show the existence of a “continuing discriminatory state of affairs”.  We see little difference between this group of complaints and the previous one, and we do not think that they raise different points of principle.  The two acts complained of are (i) Dr Ma’s transfer to the Robotics Department in August 2002 and (ii) the failure to shortlist him for the post of neurobiologist following his application for the post in April 2005.  The Chairman found that the decision not to shortlist him for the post of neuro-biologist was made in June 2005, and that this complaint had therefore been presented in time.  However, he found that Dr Ma’s complaint about his transfer to the Robotics Department had not been presented in time, on the basis that since it was a single act, it was incapable of amounting to a continuing act.  In our judgment, describing the act as a single act, and for that reason concluding that it could not be a continuing act, begged the question which the Chairman had to decide – which was whether this particular act was connected in some way to the other acts complained of by some common theme which linked them together.

Conclusion
22.	It follows that this appeal must be allowed, and the Chairman’s ruling that those of the complaints, apart from the excepted complaints, which related to acts of discrimination which were alleged to have occurred on or before 22 May 2005 were out of time must be set aside.  The case will be remitted to another Chairman to determine the preliminary issue in the light of this judgment.  However, we advise Dr Ma not to assume that on a reconsideration of the preliminary issue there will be a different outcome.  If the Chairman concludes, after looking at all the alleged acts of discrimination as a whole, that it is not reasonably arguable that the various acts of which Dr Ma complains reveal a pattern of behaviour which is explicable only on the basis that there is some connecting link between them, and that link is Dr Ma’s Chinese ethnicity, the result will be the same.  Dr Ma should appreciate that such an allegation is a difficult one to prove.