RACE DISCRIMINATION : CONTINUING ACTS : JURISDICTION

The Court of Appeal affirmed the principle that in considering whether separate incidents formed part of "an act extending over a period" within the Race Relations Act 1976 s.68(7)(b), one relevant but not conclusive factor was whether the same individuals or different individuals were involved in those incidents.

The appellant employee (Z) appealed against a decision of the Employment Appeal Tribunal that some of her claims for race discrimination against the respondent trade union (F) were time-barred. Z was Asian and worked for the Crown Prosecution Service. She had been suspended on suspicion of gross misconduct but was vindicated by a subsequent investigation. She brought a claim of race discrimination against the CPS in December 2001 and sought F's assistance with her claim, but F refused. Z won her claim, and the CPS conducted an internal investigation into Z's suspension. Two white employees involved in Z's suspension sought F's assistance, and F agreed to represent them. In December 2006 F also agreed to assist Z with a remedies hearing following the Court of Appeal's decision in Crown Prosecution Service v Aziz (2006) EWCA Civ 1136, (2007) ICR 153. In August 2007, Z brought claims of race discrimination against F, naming three of its employees. An employment tribunal found that claims relating to F's failure to assist Z with her original proceedings against the CPS were out of time and it would not be just and equitable to extend time. The tribunal concluded that the only claim that was in time was a claim concerning F's delay in obtaining representation for Z's remedies hearing. That decision was upheld by the EAT. Z was granted permission to appeal on a specific ground but sought permission to appeal on a new ground. Z submitted that the tribunal should have found that the earlier incidents were part of a continuing act or omission.

HELD: In considering whether separate incidents formed part of "an act extending over a period" within the Race Relations Act 1976 s.68(7)(b), one relevant but not conclusive factor was whether the same individuals or different individuals were involved in those incidents, British Medical Association v Chaudhary (No2) Unreported March 24, 2004 EAT considered. Z had a prima facie case for saying that F's conduct in each distinct period constituted a continuing act or possibly a continuing omission, Commissioner of Police of the Metropolis v Hendricks (2002) EWCA Civ 1686, (2003) 1 All ER 654 applied. However, the first period ended when Z's original proceedings came to an end in June 2004 and there followed several months when Z had no dealings with F. The period concerning the alleged delay in arranging representation for Z's remedies hearing began in December 2006. The tribunal had rightly let the whole of that head of claim go forward, but there was no basis for alleging that the allegations concerning the earlier period constituted acts or omissions which continued beyond December 2006, Kingston upon Hull City Council v Matuszowicz (2009) EWCA Civ 22, (2009) 3 All ER 685 considered. Only limited assistance was to be derived from the Matuszowicz case in relation to the instant appeal. Permission to appeal on the new ground was refused.

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