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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 >> Bayliss v London Borough Of Hounslow [2002] EWCA Civ 354 (21 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/354.html Cite as: [2002] EWCA Civ 354

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 21st March 2002

Lord Justice Mummery :

1. This is an appeal from the order of the Employment Appeal Tribunal dated 12 December 2000 dismissing an appeal by Mrs Henrietta Bayliss against the decision of the Employment Tribunal striking out her claims under the Race Relations Act 1976 (the 1976 Act) for race discrimination and victimisation against the London Borough of Hounslow (the Council). In Extended Reasons sent to the parties on 9 July 1998 the Employment Tribunal held that it had no jurisdiction to consider her complaints in Claim No 62133/94.
2. In the judgment given on behalf of the Employment Appeal Tribunal by HHJ Levy QC it was held that no question of law arose from the decision of the Employment Tribunal. Permission to appeal was refused. Permission was also refused on paper by Keene LJ, but was granted on a renewed oral application to Henry and Rix LJJ on 13 August 2001. Permission was limited to those parts of the order of the Appeal Tribunal that:

" (1) upheld the decision of the Employment Tribunal on claim 62133/94 that the Appellant's complaint did not constitute a continuing act, and

(2) endorsed the decision of the Employment Tribunal that the incident which occurred on the 19^th August 1994 was not capable of being a detriment."

3. The issues on the appeal concern the time limits for discrimination claims in the Employment Tribunal set by section 68 of the 1976 Act and the ingredients of claims for race discrimination and victimisation in the field of employment under sections 1, 2 and 4.

The Claims and Time Limits

4. Catherine Parr House in Hanworth, Middlesex is a residential respite care home for children and young people with severe learning difficulties and additional physical or sensory disabilities. Mrs Lemmings was employed by the Council as a Senior Residential Social Worker at the home. She is white.
5. Mrs Bayliss began to work at the home as an agency worker in 1989. She became a Residential Social Worker employed by the Council on a fixed term contract in February 1993. She is from Sierra Leone and is black.
6. On 7 November 1994 Mrs Bayliss presented an Originating Application to the Employment Tribunal complaining of "racial harassment" and abuse by Mrs Lemmings between 26 November 1993 and 19 August 1994. She specifically stated that on 19 August she was "confronted by my harasser once again", after which incident she was advised not to return to work on medical grounds. She also alleged that she had been victimised as a result of making a complaint to the managers of the home. The Council, which was a respondent along with Mrs Lemmings, was criticised for delay in taking action against Mrs Lemmings and was alleged to be vicariously liable for her actions. Mrs Bayliss complained of the distress she had suffered and the serious effect on her health.
7. In Further Particulars dated 4 March 1996 Mrs Bayliss supplied details of "a litany of racist comments" by Mrs Lemmings and of a formal complaint made by her in early June 1994 to the manager of the home, Mrs Rose Baldwin, who arranged a meeting. Mrs Bayliss referred to the "intolerable atmosphere" in which she was required to work and the failure of the Council to take appropriate action. Mrs Lemmings had supervision meeting with Mrs Baldwin on 17 June 1994, at which she was instructed to amend her behaviour. The Further Particulars expressly addressed the issue of time limits by asserting that there was repeated unlawful conduct "amounting to a continuous act of discrimination." An extension of time was requested to allow the various incidents mentioned to be treated as acts falling within the prescribed time limit.
8. Section 68 (1) (a) of the 1976 Act provides that an employment tribunal

2. "…shall not consider a complaint under section 54 of the Act unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

9. Under section 68 (7) (b)

"any act extending over a period shall be treated as done at the end of that period."

10. Section 68 (6) confers power on the tribunal to consider a claim out of time

"…if in all the circumstances of the case it considers that it is just and equitable to do so."

11. It was necessary for the tribunal to consider the provisions relating to time limits, which go to its jurisdiction, because the only incident of discrimination alleged to have taken place within the period of three months before the presentation of the application (i.e. after 8 August 1994) was on 19 August 1994, when it was alleged that Mrs Lemmings said to Mrs Bayliss

"By the way, why am I the only one that is having all the flak ? What about the others, they are calling you names ?"

12. The Further Particulars stated that on 24 August 1994 Mrs Bayliss collapsed at work and was diagnosed as suffering a severe nervous breakdown and emotional depression, which she alleges were caused by the manner of her treatment at work.
13. Mrs Bayliss remained off work and was dismissed on 11 June 1995. In the meantime Mrs Lemmings had been suspended in September 1994, had appeared before a disciplinary tribunal in December 1994 and had been dismissed from her post and re-instated at a lower grade.

The Decision of the Employment Tribunal

14. The issue of time limits was raised at the combined hearing of the Originating Application No 62133/94 and another Originating Application No 49580/95 by Mrs Bayliss alleging victimisation and unfair dismissal by the Council. It is clear from its Extended Reasons that the tribunal fully appreciated the significance of the complaint about the incident on 19 August 1994. It was the only incident involving Mrs Lemmings within the three months time limit. As stated in paragraph 2 (1)-

"…if the alleged act of discrimination had continued up to, or the last alleged act of discrimination had occurred on, 19 August 1994, it would bring her IT1, which was presented to the Tribunal on 7 November 1994, within the statutory time limits prescribed for presenting race discrimination and victimisation complaints to the Tribunal under section 68 of the 1976 Act."

15. Argument on the preliminary jurisdictional point of time limits was not heard until 14 October 1997, by which time the tribunal had already heard six days of evidence from Mrs Bayliss and her witnesses on both of her Originating Applications.
16. The tribunal unanimously decided that the complaints of race discrimination and victimisation against both Mrs Lemmings and the Council were outside the time limits and that it would not be just and equitable to extend the time limits to allow Mrs Bayliss to proceed with the complaints. There is no appeal before the court against the tribunal's refusal to exercise its discretion to extend time.
17. While expressing no view on the merits of the complaints, the tribunal stated that all the allegations against the respondents given in evidence, as in the IT1, the Further Particulars and in Mrs Bayliss's chronology of events, occurred prior to 8 August 1994, save for the incident on 19 August 1994; that Mrs Bayliss had had no contact with Mrs Lemmings during the period 19 June to 15 July 1994, when the home was closed due to flooding, or from 20 August onwards when Mrs Bayliss went on sick leave and never returned to work.
18. The tribunal's reasons for holding that the application was out of time are set out in paragraph 11(2):

"The only allegation which the Applicant makes against Ms Lemmings, the Second Respondent, which falls within the period 8 August 1994 to 7 November 1994 is the allegation …that on 19 August 1994 she was approached by Mrs Lemmings who asked her in an angry manner "By the way, why am I the only one who is having all the flak? What about the others who are calling you names?" to which the Applicant replied that she would only be prepared to speak to her if Rose (Mrs Baldwin) was present as a witness. Whilst it might have been unwise of Ms Lemmings to have initiated that conversation, she did so on Mrs Baldwin's advice and those comments by Ms Lemmings were not capable of being an act of race discrimination or victimisation against the Applicant within the meaning of sections 1(1)(a), 2 and 4(2)(c) of the 1976 Act. Furthermore, applying the principles in Ministry of Defence v. Jeremiah [1980] ICR 13, CA, where it was held that "detriment" meant "putting someone at a disadvantage" and that that was a question of fact and degree for the Tribunal, this Tribunal is unable to find that those remarks made by Ms Lemmings were per se an act which subjected the Applicant to a detriment. Furthermore, those remarks constituted a distinct and separate act and did not form part of any "continuous" act within the meaning of section 68 (7) (b) of the 1976 Act nor within the guidance in Owusu v. The London Fire and Civil Defence Authority [1995] IRLR 574 EAT, Barclays Bank v. Kapur and Others IRLR 136,HL(E) and Sougrin v. Haringey Health Authority [1992] IRLR 416,CA. If there was any "continuing act" of which there is no evidence, it did not continue into the period 8 August to 7 November 1994. The allegations made against Ms Lemmings relate to alleged incidents during the period 1989 to 16 June 1994. The Applicant went on sick leave on 20 August 1994 and did not return to work and had no contact with Ms Lemmings during the period of her sick leave."

Continuing Act Point

19. In his valuable submissions on behalf of Mrs Bayliss Mr Gumbiti-Zimuto contended that the Employment Tribunal was perverse in holding that the incident on 19 August 1994 was not an act, or part of an act, extending over a period within the meaning of section 68 (7) (b) of the 1976 Act. Mrs Bayliss's claim included complaints of the continuing activity of racial harassment and about "the atmosphere" in which she was required to work. That state of affairs continued as long as the situation she complained about remained the same, which it did up to and including the incident on 19 August. The Council, as employer of Mrs Lemmings, maintained a practice or regime at the home of insulting and racist treatment of Mrs Bayliss, which continued to 19 August. The Tribunal had erred in concentrating on the language used in that particular incident. It had disregarded the angry manner in which the words were spoken, the welter of evidence of racist comments repeatedly made by Mrs Lemmings on earlier occasions from November 1993 and Mrs Bayliss's complaints about them, as established in the disciplinary proceedings against Mrs Lemmings. This was a case of ongoing conduct extending into the period of three months preceding the presentation of the Originating Application.
20. I am unable to accept the submissions of law on this point. The tribunal directed itself to the correct statutory provisions and to the authorities on the construction of section 68 (7) (b) and it was entitled to reach the conclusion that the acts of discrimination and victimisation did not extend into the three-month period. I am a little puzzled by the tribunal's comment that there was no evidence of a "continuing act." It also appears that the tribunal was factually wrong in stating that the conversation on 19 August took place on the advice of Ms Rose Baldwin (the advice was given to Mrs Lemmings by Mrs Pugsley, who gave evidence for Mrs Bayliss at the hearing). The critical point, however, is that the tribunal did not misinterpret or misapply the provisions to the material before it. On Mrs Bayliss's account and chronology there was a two month gap in the continuity of Mrs Lemmings's racist speech after the meeting with Mrs Rose Baldwin on 17 June 1994. As the questions asked on 19 August were not racial in terms or in substance the tribunal was entitled to take the view that they did not form part of any continuous act, but were a "distinct and separate act." Considered objectively and taking account of the earlier incidents, the conversation on 19 August simply consisted of two questions put to Mrs Bayliss in non-racial words.

Detriment and Discrimination

21. If, as I would hold, Mrs Bayliss fails on the continuing act point, the question arises whether the incident on 19 August was itself an act of race discrimination or victimisation, which subjected Mrs Bayliss to detriment. As the tribunal noted

" The only incident involving Ms Lemmings which is within the statutory three month time limits (if capable of being an act of discrimination ) is an allegation of remarks made by Ms Lemmings at a meeting on 19 August." (paragraph 2 (5)).

22. In paragraph 11 (2) of the Extended Reasons quoted in full in paragraph 18 above the tribunal addressed the question whether the incident was capable of being an act of discrimination. It is clear from the references in paragraphs 10 and 11(2) of the Extended Reasons to the relevant provisions of the 1976 Act (sections 1(1) (a), 2 and 4(2) (c)) that the tribunal was well aware that Mrs Bayliss's complaint concerned two kinds of discrimination-both discrimination on racial grounds and discrimination by way of victimisation-and that, on a complaint of discrimination in the field of employment, it was necessary to consider whether the act complained of had subjected Mrs Bayliss to any detriment. It concluded that the incident of 19 August was not capable of satisfying any of those requirements.
23. Mr Gumbiti-Zimuto contended that the tribunal had misdirected itself in law or had wrongly applied the law in reaching this conclusion. He accepted that the tribunal had correctly proceeded on the basis that "detriment" in the Discrimination Acts means "putting under a disadvantage" and that this requirement should be approached from the objective viewpoint of the reasonable worker as to what would or might be a detriment: see Brandon LJ at p.26 and Brightman LJ at p. 30 in Ministry of Defence v. Jeremiah [1980] ICR 13; and De Souza v. The Automobile Association [1986] ICR 514. The court was referred to other authorities which indicate that an emotional or unjustified sense of grievance cannot amount to detriment or less favourable treatment: see Barclays Bank plc v. Kapur (No 2) [1995] IRLR 87,CA and Lord Chancellor v. Coker [2001] ICR 507,EAT.
24. Mr Gumbiti-Zimuto also accepted that, unlike the earlier incidents complained of, the questions asked by Ms Lemmings on 19 August were not in racial terms. But, he submitted, the tribunal had wrongly looked at the incident from the perspective of the discriminator instead of the victim. It had wrongly restricted its consideration of the incident to the language used on that particular occasion and the effect that it would have, instead of considering Mrs Bayliss's treatment in her working environment by Mrs Lemmings and the Council. The incident on 19 August could only be properly understood by reference back to the earlier incidents of racial abuse and to Mrs Bayliss's complaint about them. The incident would not have taken place but for what had happened earlier. He contended that, when her overall situation and all the circumstances of 19 August were properly considered, the incident was an act of discrimination. This was a case of ongoing racial harassment leading to Mrs Bayliss's collapse at work a few days later and her breakdown in health. Although ill health is clearly a detriment, it is not mentioned at all by the tribunal in paragraph 11 (2) of its Extended Reasons. It is only considered as a factor relevant to the exercise of its discretion on the application to extend time. As a result of a blinkered approach to the incident on 19 August, the tribunal had reached a conclusion which was perverse and a denial of justice. The whole matter should be remitted for re-hearing by a differently constituted tribunal.
25. Some force is added to the general thrust of those submissions by the fact that the Council do not dispute that Mrs Bayliss was the subject of racial harassment: the Council had taken disciplinary proceedings against Mrs Lemmings in 1994, had found that some of the allegations to be proven and had taken appropriate action against her.
26. It is, however, crucial never to lose sight of the limited role of this court on an appeal from the decision of an employment tribunal. The jurisdiction of the court is limited to questions of law. So the issue is whether the submissions on behalf of Mrs Bayliss identify an error of law in paragraph 11 (2) of the Extended Reasons. In my judgment they do not. If, as I would hold, there was no act extending over a period continuing into the three months after 8 August 1994, Mrs Bayliss was out of time in respect of her complaints of race discrimination about the earlier incidents. The tribunal had no jurisdiction to consider those complaints. All that remained as a possible act of discrimination in the IT1 and Further Particulars was the incident of 19 August. Having regard to (a) the clear break in continuity (after 17 June 1994) with the earlier incidents of explicit racial remarks, which had occurred while Mrs Bayliss and Mrs Lemmings were still working together, and (b) to the absence of any racial language or a racial content in the two questions asked by Mrs Lemmings, there was material in the circumstances of the incident considered by the tribunal which entitled it to reach the conclusion that it was not capable of being an act of racial discrimination subjecting Mrs Bayliss to detriment. Similar considerations apply to the tribunal's rejection of the complaint of discrimination by way of victimisation. Although the questions asked by Mrs Lemmings on 19 August arose out of and related back to the complaints of racial discrimination made by Mrs Bayliss, the tribunal was entitled to conclude that they were not capable of constituting victimisation within section 2 on the ground that Mrs Lemmings did not, in all the circumstances, treat Mrs Bayliss less favourably than in those circumstances she treated or would treat other persons.
27. The fact that another tribunal or this court might have taken a different view of the incident of 19 August is insufficient to justify a verdict that this decision was perverse or irrational, or one which no reasonable tribunal could have reached.
28. I would dismiss the appeal.

Sir Christopher Slade – I agree

Lady Justice Arden – I also agree.

Order: Appeal dismissed with costs. Application for permission to appeal to House of Lords refused. (Order does not form part of the approved judgment)