The claimant was a black African who had passed the Bar Vocational Course but had never actually practiced as a barrister. He applied for the post of Employment Lawyer but was not short-listed, the reason given by the respondent that he was not a qualified barrister. He then applied for the position of Litigation Assistant on two separate occasions, again being rejected, this time the reason being that he was overqualified and unlikely to stay in the position for very long, thus undermining the stability of the legal department. He made a complaint of race discrimination in respect of each failed job application. At the PHR, which the claimant did not attend, the Judge had to determine the question of limitation and whether the claims should be struck out under rule 18(7)(b). The Judge decided that the claims were time barred, the third claim being 1 day out of time, and it was not just and equitable to extend time. Further and alternatively, the claims should be struck out because the respondent had rejected all applicants, not just the claimant, that were not practicing barristers in the first post, and all applicants who were overqualified for the second post. The respondent had not acquainted themselves with the ethnic background of the applicants and so the race discrimination claim failed. The claimant applied for a review, saying that he had now found evidence which proved that his third claim was in time. The Judge made no finding on this issue but affirmed her alternative strike-out ruling and the application failed. The claimant appealed and the respondent cross-appealed against new evidence being admitted.

On appeal, the Judge had to decide if the fresh evidence could, with reasonable diligence, have been adduced at the original PHR hearing. The evidence consisted of an automated email from the ET acknowledging receipt of his ET1 on the last day of the 3 month limit. The stamped ET1, which of course only the respondent had received, had a date of the following day. The Judge allowed the new evidence, saying that the claimant could reasonably have expected the ET to correctly record the date on which his form was received. They next had to decide if the 3 rejected job applications were capable of amounting to a continuing act. This argument was rejected on the ground that the 3 applications were made in entirely separate recruitment rounds. Finally, the EJ was entitled to strike out the remaining in time complaint and had given clear and adequate reasons for her conclusion.

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Appeal No. UKEAT/0491/10/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 February 2011

Judgment handed down on 17 March 2011

Before

HIS HONOUR JUDGE PETER CLARK (SITTING ALONE)

MR J ITESHI (APPELLANT)

LONDON BOROUGH OF HAMMERSMITH AND FULHAM (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR J ITESHI (The Appellant in Person)

For the Respondent
MR ANDREW EDGE (of Counsel)

Instructed by:
London Borough of Hammersmith and Fulham (Legal Services)
Town Hall
King Street
Hammersmit
London
W6 9JU

PRACTICE AND PROCEDURE

New evidence on appeal

Striking-out/dismissal

RACE DISCRIMINATION – Continuing act

Fresh evidence on appeal – continuing act – ET rule 18(7)(b) strike-out.

Fresh evidence admitted to show that final complaint was in time, but that earlier complaints did not form part of a continuing act (separate job applications by non-employee). Final complaint properly struck out as having no reasonable prospect of success, albeit a complaint of race discrimination.

1. This is an appeal by Mr Iteshi, Claimant before the Watford Employment Tribunal, against the Judgment of Employment Judge Manley, sitting alone at a PHR on 9 June 2010, promulgated with Reasons on 18 June. The Respondent here and below is the London Borough of Hammersmith and Fulham. The Respondent also raises a cross-appeal to which I shall return.

1. The Claimant, who is black and of Nigerian origin, holds degrees at graduate and masters level, has successfully completed the Bar Vocational Course (BVC) and was called to the English bar in October 2007. He has not, however, undergone pupillage and therefore has never practised at the independent bar.

1. In February 2008 he applied to the Respondent for an advertised post as an Employment Lawyer. He was not short-listed for the post but raised no complaint at that time.

1. On 27 May 2008 he made a second application to the Respondent for the post of Litigation Assistant. Again he was not short-listed. When he sought feedback from the Respondent he was told that he was not considered a qualified barrister for the Employment Lawyer post and overqualified for the Litigation Assistant post. In August 2009 he made a third application to the Respondent, also for a Litigation Assistant post, and again was not short-listed. He presented a complaint of racial discrimination against the Respondent to the Employment Tribunal in respect of each failed job application.

1. The claims were resisted and came before Employment Judge Manley at the PHR held on 9 June 2010 for determination of two issues; first, whether the claims were time-barred and secondly whether they had no reasonable prospect of success such that they ought to be struck out under ET rule 18(7)(b).

1. The Claimant did not attend the PHR, having elected to rely on written representations consisting of a written statement and various documents relating to the academic qualifications of various ethnic groups, giving rise to possible discrimination between black Africans (the group in which the Claimant placed himself) and black Caribbeans.

1. At the PHR the Respondent was represented by counsel, who called Ms Mullins, the Respondent's Head of Litigation, to give oral evidence. She was questioned by the Employment Judge on her witness statement.

1. As to the two preliminary issues the Employment Judge found as follows:

1. (1) Limitation. The date of the last job rejection was 5 October 2009. On the material before her the Employment Judge believed that the form ET1 was lodged on 5 January 2010, 1 day out of time. She did not consider it just and equitable to extend time in relation to the third job application. As to the two earlier applications, she held that there was here no continuing act to bring those applications into consideration with the third application.

1. (2) Further and alternatively, she would, but for the limitation bar, have struck out the claims under rule 18(7)(b). Her reasoning was as follows: the application for the Employment Lawyer post failed on the sift because he had insufficient experience when compared with other applicants. As to the Legal Assistant posts, in 2008 there were 186 applications for two posts and in 2009, 234 applications for one post. In these circumstances a decision was taken at the initial sift by Ms Mullins to reject all candidates (including the Claimant) considered, by virtue of having undertaken either the Legal Practice Course or BVC, as overqualified for that post; her rationale was that qualified barristers or solicitors tended not to stay in employment; they looked for better posts elsewhere and that affected the stability of her legal team. The Employment Judge also accepted Ms Mullins' evidence that on that preliminary sift she did not acquaint herself with the ethnic background of the candidates, including the Claimant. In these circumstances his complaint of direct race discrimination failed; the Respondent did not know of his race at the point of rejection; he did not pass stage 1 of the Igen test; but even if he did, the Respondent's explanation for his rejection had nothing to do with his race and was entirely reasonable. Similarly, any prima facie case of indirect discrimination would fail on the basis of the Respondent's explanation, amounting to justification for any such prima facie discrimination.

1. Following promulgation of the PHR judgment the Claimant applied for a review. That was summarily dismissed by the Employment Judge for reasons given in her review decision dated 15 July. As to limitation, the Claimant had noticed that although his claim form ET1 had been stamped by the Employment Tribunal as received on 5 January, the automated response showed that his email application had been received at 23.37 hours in 4 January, making it in time so far as the third rejection was concerned.

1. The Employment Judge raised the issue as to whether she should receive this 'new evidence', presumably applying the Ladd v Marshall test, on review, but, as I read her reasoning, made no final determination on that question because she went on to affirm her alternative strike-out ruling at the PHR. On that basis the review application failed. I pause to note that by its Answer, the Respondent seeks to cross-appeal any finding made by the Employment Judge on the review application that the Claimant could rely on that fresh evidence.

1. Strictly, the cross-appeal necessarily fails because, as Mr Edge acknowledged in argument, the appeal by the Claimant is brought only against the PHR Judgment; accordingly there can be no cross-appeal against the Employment Judge's separate review decision. That said, Mr Edge was entitled to and did oppose my receiving in evidence the ET automated response (the fresh evidence).

1. The Ladd v Marshall principles were adopted by Popplewell P in Wileman v Minilec Engineering Ltd [1988] ICR 318 in this jurisdiction. The question is (a) whether the new material could with reasonable diligence have been adduced at the original, PHR, hearing (b) whether it is relevant and would probably have had an important influence on the result of the case and (c) is apparently credible. Strictly, no application to adduce the fresh evidence was made by the Claimant in accordance with para. 4 of the sift order made by HHJ Richardson in this cases dated 19 October 2010, but Mr Edge very properly takes no technical objection on that basis; he was able to deal with the point, it having effectively been raised in the abortive cross-appeal.

1. There is no doubt that the fresh evidence passes the second and third limbs of the Wileman test. The evidence was plainly credible, coming from the ET itself and would have a material effect on the limitation issue since its admission would show, in my view conclusively, that the third job application complaint by the Claimant was in time.

1. The real issue concerns the reasonable diligence test. On one level, as Mr Edge submits, the material was in the Claimant's possession well in advance of the PHR: he received the ET automated response on 4 January; that hearing took place on 9 June. The Claimant could have exhibited the response to his witness statement or at least mentioned the fact that his form ET1 had been received in time. He could have raised the matter at the PHR hearing, but he chose not to attend without good reason. The Respondent had adverted to the point in their form ET3, which requested a PHR to determine, among other things, "whether the Claimant's claim in its entirety, or in parts, should be struck out for being out of time".

1. I see the force of those factors relied on by Mr Edge; however Mr Iteshi submits that at no stage did the Respondent point out that on the copy form ET1 served on them it was date-stamped 5 January by the Employment Tribunal (the Claimant would not receive a copy of the date-stamped ET1): he reasonably assumed that, having itself generated the automatic response, the Employment Tribunal administration would not incorrectly date-stamp the form, thus inadvertently misleading the Respondent and the Employment Judge into believing that the form ET1 was in fact lodged on 5 January.

1. Having considered the rival contentions it seemed to me that justice required that I grant permission to the Claimant to adduce the fresh evidence before me. The point was not raised in terms by the Respondent prior to the PHR and the Claimant could reasonably have expected the Employment Tribunal to correctly record the date on which his form ET1 was received.

1. It therefore follows that, having admitted the fresh evidence, I am satisfied that the Employment Judge misapprehended the true facts in ruling at the PHR that all three claims fell outside the primary limitation period; the third claim was in time.

1. There is no appeal against the Employment Judge's finding that it was not just and equitable to extend time for bringing the claims. Thus the question in the Claimant's appeal is whether the Employment Judge was wrong in law in holding that the three rejected job applications were not capable of amounting to an act extending over a period for the purposes of s68(7)(b) Race Relations Act 1976.

1. I have been referred to the general statement of principle to be found in the judgment of Mummery LJ in Metropolitan Police Commissioner v Hendricks [2003] ICR 530, paras. 48-52, explaining the earlier cases. However that was a case of a claimant in employment with the respondent, where it is not necessary to show a general policy or practice of discrimination, rather an 'on-going situation or continuing state of affairs'.

1. However the position is different, as I understand the cases, where the claimant is not an employee of the respondent, but, as here, a job applicant. Examples may be found in Choudhary v Royal College of Surgeons [2003] ICR 1510; Rovenska v General Medical Council [1998] ICR 85 and Tyagi v BBC World Service [2001] IRLR 465, all Court of Appeal.

1. Applying those principles I am satisfied that the Employment Judge was entitled to conclude (PHR reasons para. 4) that there was here no continuing act; the three applications were made in entirely separate recruitment rounds.

1. Thus the final question for me is whether the Employment Judge was entitled to strike out the single in time claim; the third job application complaint, on the grounds that it had no reasonable prospect of success (ET rule 18(7)(b)).

1. The extent of an Employment Judge's power to strike out, particularly an unlawful discrimination claim, has been considered at the highest level; see Anyanwu v South Bank Students Union [2001] ICR 391 (HL); applied in Ezsias v N Glamorgan NHS Trust [2007] ICR 126 (CA). I have been referred to the approach of Underhill P to this question in ABN Amro Management v Hogben (UKEAT/0266/09, 20 November 2009) at para. 7. I gratefully adopt that approach; plainly a case may be struck out in appropriate circumstances, else there is no purpose in rule 18(7)(b).

1. Returning to the facts of this case, as I have observed earlier, the Claimant chose not to attend the PHR; as he put it to me in argument 'I refused to turn up at a dodgy PHR'. He thus deprived himself of the opportunity to cross-examine Ms Mullins, the Respondent's Head of Litigation, who gave evidence that in rejecting the Claimant, among other applicants, for the Litigation Assistant post she was unaware of his race. The Employment Judge accepted that evidence. On that finding of fact alone she was entitled to hold that his claim in respect of that application had no reasonable prospect of success.

1. However, that was not the sole ground. The Employment Judge also accepted Ms Mullins' evidence that a large number of applications (given the large entry field) were rejected on the grounds that those applicants were overqualified and might not stay in post when the jobs market picked up. That distinguishes any potential comparator who was short-listed and had not undertaken the LPC or BVC. Finally, although direct discrimination cannot be justified prima facie indirect discrimination can. It seems to me that the Employment Judge was entitled to concluded (reasons para. 14) that it would be virtually impossible for the Claimant to show that the Respondent's justification for adopting that sifting criterion (over-qualification) was not made out.

1. For all these reasons I am satisfied that this is a case, on its particular facts and circumstances, in which it was appropriate for the Employment Judge to strike-out the remaining in time complaint, as I have found it to be, notwithstanding that it raises a complaint of unlawful discrimination. The Employment Judge gave clear and adequate reasons for her conclusion.

1. For these reasons this appeal and the Respondent's cross-appeal fail and are dismissed.