Cast v Croydon College [1998] EWCA Civ 498 (19 March 1998)

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The appellant, Mrs Jackie Cast, appeals from an order of the Employment Appeal Tribunal dismissing her appeal from a decision of an Industrial Tribunal on a preliminary issue that it had no jurisdiction to hear her claim for sex discrimination because it was presented out of time, and that it was not just and equitable in the circumstances to extend the time limits.

Mrs Cast's case is that both Tribunals erred in law in their respective decisions on those issues. She claims that her former employer's, Croydon College's, refusal after the birth of her child, following a prospective refusal before the birth, to permit her to work part-time constituted indirect discrimination within the meaning of Section 1(1)(b) of the Sex Discrimination Act 1975. The College's case is that both Tribunals were correct in concluding that the relevant date was the date of its first refusal, before the birth, to allow her to work part-time after her return from maternity leave.

The relevant facts are as follows. Mrs Cast worked full-time as the Manager of the College's Information Centre. The College had a written policy, in its Corporate Development Plan and in the form of local authority guidelines, of receptiveness to proposals for job sharing at all levels. The policy made no special provision for, or exception from it, of Mrs Cast's post. In early 1992 she was pregnant and arranging to take maternity leave for the expected birth of her child in August of that year. On 26th March 1992 she repeated an earlier request to Mr S. Holt, her line manager, for permission to work part-time and to

share her job with another after her return from maternity leave. He refused her request. (Both Tribunals found that time ran from that date). On 30th March 1992 Mr K. Richardson, the Director of Services and Administration of the College, advised her that she should work full-time for at least thirteen weeks on her return from maternity leave in order to secure her full maternity rights. On 27th May 1992 Mrs Cast wrote to the College confirming that she intended to return to her employment after her maternity leave. She went on that leave on 3rd July 1992 and on the 12th August 1992 gave birth to a son.

On 1st March 1993 Mrs Cast returned to work, contractually complying with her full-time working commitments by using accrued leave of 33 days to enable her to work between one and two days a week. On 16th March and 10th May 1993 she again asked Mr Holt whether she could share her job with someone else. On each occasion he said that she could not do so. She followed up those requests on 11th May 1993 by a letter to Mr Richardson asking for the reasons for that decision and drawing his attention to the statement of policy in the College's Corporate Development Plan of its objective "to introduce job-sharing arrangements for posts at all levels throughout the College". He wrote to her on 13th May 1993 saying that he had asked Mr Holt to write to her formally advising her "of his decision". Mrs Cast wrote back by return stating that she was not looking for a further decision and added "May I stress that it is the reasons for the decision that I am seeking".

"Further to our meetings on 26 March 1992, 23 March 1993, 29 March 1993 and 10 May 1993, at which we have spent much time in reflecting upon your request for job share or part-time working arrangements, as you request, I am herewith providing for you in writing the reasons that prevent me from being responsive to your proposals."

He continued by saying that it was essential for the holder of the post of Information Centre Manager to work full-time so as properly to co-ordinate the work of the Centre's team of part-time employees. And he expressed concern about the damage that any further "fragmentation" of employment at managerial level would cause to the Centre.

Mrs Cast immediately took a week's sick leave and then returned to her pattern of working part-time, still taking advantage of her accrued leave. On 7th June 1993, just over three weeks after Mr Holt's letter, Mrs Cast wrote to him giving one month's notice of her intention to leave because of his refusal to allow her to work part-time and to share her job. She explained that she had taken the date of 6th July 1993 as the date of termination of her employment because up until that time she could continue to work part-time by making use of her accrued leave. This is how she put it:

In accordance with my contract I am giving one month's notice of my intention to leave, my last working day being Tuesday 6 July 1993. The reason I have chosen this day is, as previously explained, that I shall be able to take two days' annual leave each week (from my remaining 10 days) and thereby work only the maximum 3 day week that I wish to work.

The early weeks following my return from maternity leave were fulfilling, enjoyable and, I believe, enabled me to manage the Centre in the efficient and effective manner which I consider necessary. This was during the period that I had sufficient holiday owing from the previous year to allow me to work a maximum of 3 days a week. The past few weeks of working full-time, however, have been, as you know, an immense physical and emotional strain. I have no wish to leave the job that I enjoy but, in the light of what I see as your continued inflexibility, feel that I have been left with little choice but to resign."

Mrs Cast continued by saying how much she was giving up as a result of her termination of her employment "albeit under duress" and enclosed a lengthy memorandum in support of her contention that the College should have permitted her to work part-time by allowing her to share her job with another. True to her written notice, she left work on 6th July 1993.

On 13th August 1993 Mrs Cast presented an application to an Industrial Tribunal complaining, in boxes 1 and 8 of the application form, of unfair constructive dismissal and "dismissal by sexual discrimination" on 6th July 1993. Somewhat inconsistently, she entered the date of 26th March 1992, namely the date of Mr Holt's first refusal of her request to work part-time, in box 9, which contained the words "If your complaint is not about dismissal, please give the date when the action you are complaining about took place ...". She attached to the application a written statement in which she set out the history, mostly before her maternity leave, of her attempts to persuade the College to permit her to work part-time, but making the main thrust of her complaint its failure at any time properly to consider her requests.

The College, by its notice of appearance, denied that it had dismissed her or that it had treated her unfairly or had sexually discriminated against her. In its grounds of resistance to her application, it rehearsed the pre- and post-maternity history and, in paragraph 6, stated that it had given "[f]urther consideration" to the matter in response to her request made after return from maternity leave.

The hearing before the Industrial Tribunal took place over two days, 13th July and 31st October 1994. On the first day, the College took the point that Mrs Cast's application was out of time since it had not been presented within three months after "the act complained of was done", namely the alleged act of discrimination, as required by Section 76(1) of the Act. Prompted by that preliminary objection, the appellant sought, and was granted leave, to amend her application so as to allege "May 1993" as the date of the discriminatory act. The College, which was represented by Mr Bruce Carr of counsel, did not object to that amendment, but maintained its stance that the true date was the one that she had originally inserted in box 9 of her application, 26th March 1992. The proceedings continued, with the consent of both parties, as a hearing only of a preliminary issue on the limitation point.

The Tribunal confined its consideration to the jurisdictional questions raised by the time bar, namely: what was the act of discrimination of which Mrs Cast complained, when was it done and, if it was done more than three months before the presentation of the application, whether it was "just and equitable" to extend the period. It held that it had no jurisdiction to hear the claim because the act complained of was not an act extending over a period within Section 76(6)(b), but the single act of Mr Holt's refusal of 26th March 1992, that it was, therefore, outside the three months period and that it was not just and equitable to extend the period under Section 76(5).

"8. The Applicant also asked again on 16 March and 10 May 1993, for the Respondents to reconsider the feasibility of job share or part-time hours. The Respondents did this, but quoting from a letter by the Appellant to Mr Richardson dated 11 May 1993 'I was again refused'. Subsequently the Applicant asked for reasons for the refusal to agree to her job sharing or part-time working, and these were given to her in a letter from Mr Holt dated 14 May 1993. Subsequently the Applicant had a short period of sick leave, and then on 7 June 1993 wrote a letter of resignation from her position to take effect on Tuesday 6 July 1993. ...

On the issue, whether it was just equitable to extend the period of three months, the Tribunal was affected by the length of the period - over one year on its finding - between the act of discrimination of which complaint was made and the presentation of the complaint. At paragraph 18 of its decision it said:

"... This application should have been made by 25th June 1992 but in fact it was made on 13 August 1993 - and so it was thirteen and a half months out of time. We have to consider the interests of both parties and balance them. Bearing in mind the considerable delay which occurred in this case we do not think that it is right to extend the time limit."

Mrs Cast appealed to the Employment Appeal Tribunal. In her notice of appeal she sought to explain her original reliance on Mr Holt's refusal on 26th March 1992 as one of the acts complained of, on her wish "to be allowed to give evidence that far back". She maintained that the Industrial Tribunal had erred in law in finding that the act of which she complained was that refusal. She maintained that the act of discrimination was not complete until she first suffered detriment because of her inability to comply with the College's requirement that she should work full-time, that is, on 6th July 1993 when she left the employment. She relied upon the definition of indirect sex discrimination in Section 1(1)(b), namely that it occurs where a requirement or condition is applied to a woman with which a considerably smaller proportion of women than men can comply, which the respondent cannot justify and which is to her detriment because she cannot comply with it. In the alternative, she maintained that the Industrial Tribunal should have found that the act of discrimination extended from its first occurrence to the date of her leaving the College's employment and thus, by virtue of Section 76(6)(b), should be treated as done at the end of that period. In the further alternative, she renewed her contention that the Tribunal was wrong not to consider it just and equitable to extend the period and that, in any event, the Tribunal was wrong to consider that issue without a full hearing on the merits.

On 28th June 1996, the Employment Appeal Tribunal, presided over by His Honour Judge Hargrove, QC, dismissed the appeal. The decision is now reported in [1997] IRLR at page 14. The Tribunal rejected Mrs Cast's contention that the act of discrimination was not complete until she left her employment on 6th July 1993. It held that the Industrial Tribunal had correctly found that the act of discrimination of which she had complained was Mr Holt's decision of 26th March 1992 and that, therefore, her complaint was long out of time.

"... Until the date of refusal [i.e. on 26th March 1992] she was in a position whereby she had a full-time contract and she hoped, or believed, that she would be able to negotiate a change in that contract to suit her convenience. When she received the refusal her position changed. She no longer had the advantage which she believed she possessed, namely to remodel her engagement. Moreover if one turns to Section 76 the words of the statute are clear. Section 76(1) specifies 'when the act complained of was done'. If the question is asked 'what was the act?' the answer must be 'the refusal in March 1992'.”

"The mere repetition of a request [sic] cannot convert a single managerial decision into a policy, practice or rule. In the Owusu case, it does not hold that a series of refusals must amount to a practice. In our view, the tribunal was forced to the view that this was a single act and being a finding of fact after considering correctly the question of law, it cannot be impeached."

The authorities distinguish between a complaint of a "one-off" discriminatory decision whether or not it has a long term effect, which is governed by the general provision in Section 76(1), and one of the application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time, "an act extending over a period" for which Section 76(6)(b) provides.

Lord Griffiths in Barclays Bank Plc v Kapur [1991] 2 AC 355, HL, referred, at page 368B, to the difference between a "one-off" decision and "the continuing state of affairs which is governed by Section 68(7)(b)" (the equivalent in the 1976 Act of Section 76(6)(b) of the 1975 Act). In Owusu v London Fire & Civil Defence Authority, a complaint of an employer's failure to regrade the complainant on a number of occasions, Mummery J, giving the judgment of the Employment Appeal Tribunal, made the same distinction:

"... the tribunal erred in law in failing to treat the acts complained of on regrading and failure to give the opportunity to act up as continuing acts. ... in our view the allegations amount to a prima facie case that there was a continuing act. The continuing act was in the form of maintaining a practice which, when followed or applied, excluded Mr Owusu from regrading or opportunities to act up.

The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, 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.

It would be a matter of evidence for the tribunal as to whether such a practice ... in fact exists. It may be that, when explanations are given by the respondents, it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice." (my emphasis)

As to a "one-off" discriminatory act, it is important to keep in mind that it may be an application of an established discriminatory policy or it may be inherently discriminatory regardless of any such policy. If the complaint is of a specific discriminatory act the fact that it may have been an application of an established policy adds nothing for this purpose. The starting point is, therefore, to determine what is the specific act of which complaint is made.

The fact that a specific act out of time may have continuing consequences within time does not make it an act extending over a period. See Amies v Inner London Education Authority [1977] ICR 308, EAT - failure to appoint to a position; and Sougrin v Haringey Health Authority [1992] ICR 650, CA - refusal to upgrade an employee.

As to an act extending over a period, the authorities make clear - at least in the case of discrimination in the field of employment under Section 6 of the 1975 Act and Section 4 of the 1976 Act [4] - that it is the existence of a policy or regime, not a specific act of an employer triggering its application to the complainant, that matters. A moment's consideration of the concluding words of Section 76(6)(b) - "any act extending over a period shall be treated as done at the end of that period" (my emphasis) - shows that that must be so. If the "act extending over a period" required a specific act by an employer to give it effect there would be no need or room to "treat... it as done at the end of the period". See, as examples of claimed continuing acts of discrimination: Calder v James Findlay [1989] ICR 157, EAT - refusal of benefit of employment; and Barclays Bank v Kapur - employer's refusal to take previous pensionable employment into account in calculating pension entitlement.

There may be a policy or regime for this purpose even though it is not of a formal nature or expressed in writing; and it may be confined to a particular post or role. See e.g. Owusu and per Lord Griffiths in Barclays Bank v Kapur, citing with approval at page 368D-G a passage from the judgment of Bristow J in Amies v Inner London Education Authority [1977] ICR 308, EAT, at 311, which contained the following words (by way of contrast to the facts of that case):

"So, if the employers operated a rule that the position of head of department was open to men only, for as long as the rule was in operation there would be a continuing discrimination and anyone considering herself to have been discriminated against because of the rule would have three months from the time when the rule was abrogated within which to bring the complaint."

Although Bristow J concluded that passage by referring to a limitation period of three months from the abrogation of the policy, I do not think that he was suggesting that a complainant could rely on the continuance of a policy long after she had left her employment. In the case of such a policy still in existence at that date, time runs from then. That is certainly how Browne-Wilkinson J regarded the matter in the following passage from his judgment of the Employment Appeal Tribunal in Calder v James Finlay Corporation Ltd., at page 159:

"By constituting a scheme under the rules of which a female could not obtain the benefit of the mortgage subsidy in our judgment the employers were discriminating against the applicant in the way they afforded her access to the scheme. It follows, in our judgment, that so long as the applicant remained in the employment of these employers there was a continuing discrimination against her. Alternatively it could be said that so long as her employment continued, the employers were subjecting her to 'any other detriment' within section 6(2)(b). Once this conclusion is reached, in our judgment it follows that the case does fall within section 76(6)(b). The rule of the scheme constituted a discriminatory act extending over the period of her employment and is therefore to be treated as having been done at the end of her employment. ..." (my emphasis)

Before considering the submissions in the appeal I should also mention the recent decision of this Court in Rovenska v General Medical Council [1997} IRLR 367. It is important to note that it concerned discrimination in a profession, not in the field of employment. It was a claim by a Czechoslovakian doctor against the General Medical Council under Section 12(1)(a) of the Race Relations Act 1976 [5] in respect of the most recent of a series of refusals, under its rules for the grant of limited registration as a medical practitioner in this country for doctors with overseas qualifications, to exempt her from its requirement of passing a test of proficiency in English. Mummery J, giving the judgment of the Employment Appeal Tribunal, held that the complaint was not time-barred because it:

"It was an important part of ... [counsel for the GMC's] case that the Employment Appeal Tribunal failed to take into account the fact that the cases on which it relied were all decided in relation to s. 4 of the 1976 Act or s.6 of the Sex Discrimination Act 1975. ... In those cases the discriminatory act complained of is not a one-off act of refusal; it arises out of the way in which the employer affords his or her employees access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or out of the employer refusing or deliberately omitting to afford the employees access to them. In these circumstances, the courts have held that if an employer adopts a policy which means that a black employee or female employee is inevitably barred from access to valuable benefits, this is a continuing act of discrimination against employers who fall into these categories until the offending policy is abrogated."

"In my judgment, it is not necessary to resolve the question of the proper interpretation of s. 12(1)(a) of the Act in the present case. If the regime which the GMC had selected for its exemptions policy was inherently discriminatory ... then on every occasion that it refused to allow her limited registration without first taking the ... test it would be committing an act of unlawful discrimination contrary to s. 12(1)(b) of the Act. I do not regard the letter from the Greenwich Racial Equality Council as being akin to a solicitor's letter in these circumstances. It was inviting the GMC to grant Dr Rovenska an exemption, and there were three new features of this application compared with the letter Dr Rovenska had written in December. It advanced a new (bad) argument based on her acquisition of the new Master's degree; it forwarded a new up-to-date reference; and it expressly asked for an exemption. The GMC refused this application, and Dr Rovenska's application was made within three months of that refusal."

I do not believe that Brooke LJ considered it essential to his conclusion that the request prompting the final refusal contained new matter. In the second sentence of the passage cited he appears to have considered that every refusal in accordance with an alleged discriminatory policy starts time running again. The only reason, it seems to me, why he felt the need to mention new factors in the Council's letter was merely to underline his view that it was a fresh application, not merely a reminder of an earlier one. I do not regard it as part of the ratio of the Rovenska decision that a decision following consideration of a repetition of an earlier request can only amount to an act of discrimination in its own right if the further request contains fresh material. If that were so, I have to say that, despite Miss Heather Williams' arguments to the contrary on behalf of Mrs Cast, there was no relevant fresh material in the requests and various communications from Mrs Cast to the College in 1993.

Regardless of the claimed existence of a policy and of whether the claim relates to a feature of employment or access to a profession, I can see no reason to introduce into this exercise new material as a criterion of whether a second or subsequent decision is "an act complained of". Where a discriminatory policy is alleged, it may be that its continuing existence up to the time of complaint, or within three months before it, is enough to found jurisdiction in claims about access to a profession as it is in employment claims. But that is not for determination in this case. Policy or no, a decision may be an act of discrimination whether or not it is made on the same facts as before, providing it results from a further consideration of the matter and is not merely a reference back to an earlier decision.

I find support for the above conclusion in the recent decision of this Court in Akhtar v Family Services Unit, 6th November 1997 (unreported), a claim under Section 4 of the 1976 Act. [6] Though its facts are very different from those in this case, the decision is of value in two respects: first, in its reference to the need to examine carefully the factual basis of the complaint in order to determine the specific act of which complaint is made, as distinct from mere confirmation of an earlier act; and, second, in the acknowledgment that a matter is capable of being decided, that is, reconsidered, more than once on the same facts, albeit in that case by different representatives of the employer.

Miss Heather Williams, on behalf of Mrs Cast, submitted first that each refusal of the College to permit her to work part-time was an act of discrimination, that there were a number of refusals, from each of which time ran, and that the last was in Mr Holt's letter of 14th May 1993, just within the three months' limitation period. She relied on the Industrial Tribunal's findings in paragraphs 8, 11 and 14 of its decision, that I have set out, maintaining that the Tribunal clearly took the view that the College reconsidered the matter and made a fresh decision in relation to each request. She submitted, however, that the Tribunal, having found the first refusal to be a complaint of an act of discrimination, did not consider whether any of the subsequent refusals could constitute further such acts. She relied on Brooke LJ's reasoning in Rovenska.

Mr Bruce Carr, for the College, relied on what he maintained was the finding of the Industrial Tribunal and upheld by the Employment Appeal Tribunal, that the only act of discrimination was the refusal of 26th March 1992. He suggested that before that refusal Mrs Cast might have been able to persuade the College to permit her to work part-time, but that after that refusal "she no longer had that option". As to the subsequent refusals on 16th March and 10th May 1993, he urged an interpretation of the words of the Industrial Tribunal in paragraph 14 of its decision - "a repetition of the request, and of the refusal" as no more than a reference back to the original decision rather than a fresh request and a fresh decision. He submitted that the mere repetition of a request is not enough unless it is against the background of a policy and that even where there is such a policy the mere "mechanical" refusal of a repeated request is not an application of that policy so as to amount to a "one-off" discriminatory act. He sought to distinguish Rovenska on the ground that there, there was an alleged discriminatory regime and a considered decision applying that regime within the period of limitation. Here, he maintained, there was no such regime and no such decision, the appellant simply repeated her earlier request to work part-time and the College simply repeated its earlier refusal of March 1992.

If Mrs Cast's case is considered as a complaint of a number of decisions by the College, each amounting to a fresh refusal of a fresh request by her to work part-time, then the most recent refusal would be the relevant one for the purpose of the time bar. As I have said, that would be so whether or not the refusals were the application of a policy or regime that the Manager of the College's Information Centre should not work part-time. On the material before the Industrial Tribunal it is clear that Mrs Cast's most recent application to work part-time and the College's most recent refusal to permit her to do so were on 10th May 1993 in the conversation between the appellant and Mr Holt that day - just over three months before the presentation of her application. Her subsequent request in her letter to Mr Richardson of 11th May 1993 was simply for the reasons for that decision, which is all that Mr Holt gave her in his written response of 14th May 1993 - just within that three months' period.

However, it was still relevant to the Industrial Tribunal's decision whether it would be just and equitable to extend the period of limitation, to determine whether the refusal of 10th May 1993, and/or the earlier one of 16th March 1993, were acts of discrimination in the sense of being decisions in their own right or merely references back to the decision over a year before, on 26th March 1992. In my view, there is force in Miss Williams' submission, in reliance on the Tribunal's language in paragraphs 8 and 11 of its decision, as to how it regarded what it described in paragraph 14 as "the repetition of the request, and the refusal" after Mrs Cast's return from maternity leave. That is, it clearly regarded what happened on both of those occasions as more than a mere reference back to what the College had already decided before the appellant took her maternity leave. In paragraph 8 it spoke of the College "reconsider[ing]" the matter, and in paragraph 11 it referred to the College "look[ing] at the matter again, and ... confirm[ing] their original decision".

The passage from page 7 of Judge Hargrove's judgment that I have set out confuses the question whether the repetition of requests, and it would seem corresponding refusals, can convert a single decision into a policy with the question whether there was a single decision or several decisions. His conclusions that the Industrial Tribunal had been "forced to the view that this was a single act" and, implicitly, that it had so found are not, in my judgment, justified on the material before the Tribunal or evident from the way it expressed its findings.

The fact that Mrs Cast, when she originally presented her claim complaining of her dismissal in July 1993, identified, either as a feature of it or as a separate complaint, the College's refusal on 26th March 1992 to allow her to work part-time should not necessarily be held against her. It is the substance, not the form, of the complaint that matters. She had completed the form of application herself and her accompanying statement of her case clearly referred to her subsequent attempts to persuade the College to change its mind. As Sir John Donaldson MR observed in Sougrin v Haringey Health Authority [1992] ICR 650, CA, at 658G-H, when considering Section 68 of the Race Relations Act 1976, which is in the same terms as Section 76 of the 1975 Act:

"In applying section 68(1) the first step must be to identify 'the act complained of'. Industrial tribunals are 'shop floor' courts whose procedures and approaches must be attuned to the needs of litigants in person. Accordingly a tribunal should not take a narrow or legalistic view of the terms in which the complaint is couched."

Accordingly, it seems to me that the Industrial Tribunal, having found that the College reconsidered and looked at the matter again in 1993, erred in law in failing to consider the implications of that finding for the purpose of the running of time. It is true that the best that Mrs Cast could have achieved on this approach was a determination that the final refusal occurred on 10th May 1993. That was still outside the three months time limit, but only by three days, a trivial over-run when compared with that of thirteen and a half months if the refusal on 26th March 1992 were the only potential act of discrimination, and thus material to the exercise by the tribunal of its discretion whether to extend the time limit.

To acknowledge that there may be successive acts of discrimination in this way does not negate the time bar provided by Section 76, provided that decision makers make clear in responding to further requests whether they have reconsidered the matter. If they have, time begins to run again; if they have not and merely refer the complainant to their previous decision, no new period of limitation arises. However, where the successive acts are such as to indicate and/or are pursuant to a policy or regime, different considerations arise.

Miss Williams' second, and alternative, submission was that the College's stance in refusing to allow Mrs Cast to work part-time was an "act extending over a period" within Section 76(6)(b) and should, therefore, "be treated as done at the end of that period", namely on 6th July 1993 when her employment ended. She maintained, in reliance on the authorities to which I have referred, that an act can extend over a period of time within the meaning of Section 76(6)(b) if it takes the form of some policy, rule or practice in accordance with which decisions are taken from time to time and that a succession of the same decisions can both indicate and constitute such a continuing act.

Miss Williams submitted that here there was material on which the Industrial Tribunal could have found that the College's requirement that the Head of its Information Centre should work full-time amounted to a policy. She said that it therefore followed that the College's maintenance of its refusal to permit Mrs Cast to work part-time was a continuing act, not dependent on any overt decision or act to trigger or continue it, and thus was not caught by the time bar.

Mr Carr relied on the Industrial Tribunal's conclusion that there was a single managerial decision, simply repeated on a number of occasions and not as an application of policy. He referred to the Employment Appeal Tribunal's view that that was a finding of fact with which it could not interfere, and submitted that this Court should be similarly constrained.

The question is whether, on the evidence before the Industrial Tribunal and in the manner in which it expressed its findings, it was entitled to, and did, conclude that there was no claimed relevant policy. For convenience, I repeat paragraph 17 of its decision, in which it dismissed Mrs Cast's reliance on a continuing act in these words:

"... this was a single act [i.e. the refusal of 26th March 1992] by the Respondents in deciding that they would not agree to the Applicant job sharing or working part-time. It was not a rule which they imposed overall - the Applicant could point to no such rule; and so we find that there was no continuing act." (my emphasis)

As Miss Williams observed in her submission, the fact that there was a "single act" in the decision to refuse the appellant's request is beside the point on the question whether there was an act extending over a period within Section 76(6)(b) which was to her detriment under Section 1(1)(b)(iii) because she could not comply with it. As she also submitted, the Tribunal's references to the absence of an "overall" "rule" indicates that it wrongly confined its consideration to something of a more formal nature and of wider application than the claimed policy applicable to the post held by Mrs Cast. See, in particular, Mr Holt's letter to Mrs Cast of 14th May 1993 setting out in some detail the College's established and firm stance that it was not suitable for job-sharing.

In my view, the Employment Appeal Tribunal made the same error in treating as conclusive, in the passage on page 7 from Judge Hargrove QC's judgment that I have set out, the Industrial Tribunal's conclusion that there was "a single act". In any event, as I have said, even on the Industrial Tribunal's own findings of fact, there were clearly several decisions of which Mrs Cast was complaining as indicating the existence of a discriminatory policy in relation to the post of Manager of the Information Centre and of its application to her. Accordingly, I would hold that on the primary facts found by the Industrial Tribunal Mrs Cast had clearly complained of a policy constituting an extended act up to the time she left her employment within Section 76(6)(b) and that, by virtue of that provision, it was to be treated as done to her up to that time. On that ground alone, I would allow her appeal and set aside the decisions of both Tribunals.

Miss Williams submitted as a further alternative that "the act complained of" under Section 63 was the forcing of Mrs Cast to give up her employment because she was not permitted to work part-time, and thus that time ran from 6th July 1993 when her employment ceased. She relied on the relevant conduct relied on by Mrs Cast in her initial formulation of complaint, namely dismissal, as provided for in Section 6(2)(b), "dismissing her or subjecting her to any other detriment". She referred to the Employment Appeal Tribunal's apparent reliance, in the passage from page 4 of its judgment that I have set out, on 26th March 1992 as the date when the appellant suffered detriment. Her argument was simply that the substance of the appellant's complaint was not the discovery in March 1992 that she would not be able to work part-time after the birth of her baby but of the fact when it happened in the summer of 1993.

Mr Carr maintained that the appellant's resignation in July 1993 was merely one of the consequences of the original allegedly discriminatory act, which he maintained was the refusal of 26th March 1992. She could have taken the decision to leave at any time during the intervening fifteen months, or later, thus effectively determining her own period of limitation if her argument were correct. Such an outcome, he maintained, would be inconsistent with that for a claim of indirect discrimination by way of omission for which Section 76(6)(c) provides, namely that a deliberate omission is to be treated as done when the person in question decided upon it.

In my judgment, if Mrs Cast's case turned on the decision of Mr Holt, at the latest on 10th May 1993, as the trigger for her dismissal, Miss Williams' contention would in effect enable her to resurrect, contrary to the authorities, the argument that the consequence of an out of time "one-off" act is "the act complained of". The question is "What is the discriminatory act of which complaint is made?" I accept Mr Carr's submission that she cannot do that.

Finally, and as a further, but similar, alternative, Miss Williams submitted that there was no discrimination about which Mrs Cast could complain until she had begun to suffer detriment from it, which was when she was forced to leave her employment on 6th July 1993. She relied again on Section 6(2)(b) to which I have just referred and more specifically on one of the criteria of indirect discrimination in Section 1(1)(b), namely (iii) the application to Mrs Cast of a requirement or condition "which is to her detriment because she cannot comply with it". She also cited as examples of the need for a complete cause of complaint Clarke v Hampshire Electro-Plating Co. Ltd [1992] ICR 312, EAT and Swithland Motors Plc v Clarke [1994] ICR 231, EAT. Neither decision is of help on the particular issue in this case. In the former, Wood J, at 315D-G, giving the judgment of the Employment Appeal Tribunal remitting the matter to an industrial tribunal for redetermination, simply stressed the importance of determining, as between incidents on different dates, when the act of discrimination "crystallized". In the latter the Employment Appeal Tribunal held that there could be no act of discrimination under the Section 6(1)(c) of the 1975 Act in omitting to offer employment until the person allegedly responsible for the omission was in a position to offer such employment.

On that statutory basis and judicial requirement of a complete act of discrimination, Miss Williams submitted that there was no such act until the appellant left her employment on 6th July 1993 because that was the first time she was unable to comply with the College's "requirement or condition" that she should work full-time.

Mr Carr's response was that, if it were right, the only way in which a complainant could establish a discriminatory act would be by resigning even if, in other circumstances, she may have struggled to meet the requirement for some time before doing so. He submitted that such an approach would be inconsistent with the majority decision of this Court in Meade-Hill v British Council [1995] ICR 847, that the potentially discriminatory effect on the complainant of the introduction of a "mobility clause" to her contract of employment was a requirement capable of amounting to an act of discrimination under Sections 1(1)(b) and 6 and of rendering the clause unenforceable under Section 77(2). See especially per Millet and Waite LJJ at pages 860H-861 and 865H-866C respectively. Miss Williams sought to distinguish the case on the ground that it involved consideration of the contractual validity of the "mobility clause" under Section 77(2). However, that consideration arose only as part of the Court's exercise in determining when the introduction of the clause first amounted to an act of discrimination under Sections 1(1)(b) and 6. The fact that the requirement took the form of an alleged unlawful contractual term is, in my view immaterial. As Millett LJ put it, at page 861G, "The contract is merely the means by which the employers' requirement is applied to her".

In my judgment, this ground of appeal is subject to the same objection as the last. It starts by reference to the application to Mrs Cast of a requirement, at the latest on 10th May 1993, a date at which, according to her complaint, she knew she could not comply with it. However, it denies it the quality of an act of discrimination of which she complained until she suffered its consequence on leaving her employment on 6th July 1993. It is not the suffering of such a consequence which amounts to an act of indirect discrimination against a woman; it is the application to her of a requirement, whether or not yet invoked or enforced, which is to her detriment because she cannot comply with it.

In conclusion, I would hold that the Industrial Tribunal should have found that it had jurisdiction in that Mrs Cast's claim was of an extended act applicable to her up to the end of her employment in July 1993. If I were wrong about that, the last discriminatory act of which she complained was Mr Holt's refusal of 10th May 1993, just a few days outside the limitation period. If the Industrial Tribunal had looked at the matter in that way, it might well have exercised its discretion whether to extend time under Section 76(5) in a different way, and I would have considered it right to remit the application to it for reconsideration of that matter. However, in the light of my first conclusion, I would allow the appeal, set aside the orders of the Industrial Tribunal and Employment Appeal Tribunal and remit Mrs Cast's complaint to an Industrial Tribunal for consideration on its merits.

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Cast v Croydon College [1998] EWCA Civ 498 (19 March 1998) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/498.html Cite as: [1998] EWCA Civ 498, [1998] IRLR 318, [1998] ICR 500

England and Wales Court of Appeal (Civil Division) Decisions