In her ET1 the claimant had averred to several alleged continuing acts of direct discrimination, as well as making a claim based on allegations of a glass ceiling and that a decision by the respondent's appeal committee had been discriminatory. Following a Pre Hearing Review the Employment Judge, having considered Hendricks but without hearing any evidence, concluded that all claims bar the issue concerning the appeal committee were time-barred.

In this judgment Lady Smith rejects that outcome. At [14] she notes that had the jduge considered Anyamu

"she would have specifically reminded herself that it was said to be important not to strike out discrimination cases, except in the most obvious and plainest of cases, that that was because they were liable to be fact sensitive, and the bias should, in the public interest, be towards examining the claim on its merits only after having heard evidence because, if evidence is heard, the risk of injustice is minimised and the Tribunal can base its decision on facts found after having heard evidence. I would add to that that it enables a Tribunal then to base its decision on what, in addition, are the proper inferences, if any, which can be drawn from the facts found after having listened to the evidence and having observed the witnesses giving that evidence."

She then comments that her decision to remit the claims to a hearing did not point to whether the claims were well-founded merely that it was "too soon to say one way or the other".

__________________

Appeal No. UKEATS/0015/11/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH EH3 7HF

At the Tribunal

On 10 November 2011

Before

THE HONOURABLE LADY SMITH (SITTING ALONE)

MRS KAMALJIT KAUR (APPELLANT)

(1) THE CITY OF EDINBURGH COUNCIL; (2) MS JENNIFER DAWE AND 14 OTHERS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant

DR P SINGH (Representative)

For the First and Second Respondent

MS L MARR (Solicitor)

Brodies LLP Solicitors
15 Atholl Crescent
Edinburgh
Midlothian
EH3 6HA

RACE DISCRIMINATION – Continuing act. Striking out.

1. This is Ms Kaur's appeal in her claim against the City of Edinburgh Council and Ms Jennifer Dawe and others. It is an employee's appeal from that part of the Employment Tribunal sitting at Edinburgh, Employment Judge Susan Walker, registered on 16 February 2011, in which she held that although the allegations contained in paragraph 123 of the ET1 are in time and will proceed, all other complaints are out of time and are struck out, with the exception of those that relate to the alleged discrimination in relation to the handling of the Claimant's grievance that are contained in paragraphs 79, 81, 82, 85, 94, 104, 105, 111, 121 and 122.

That Judgment followed a Pre-Hearing Review at which the issue was time bar. That is, of itself, perhaps slightly misleading since it seems that, in reality, the issue was whether any part of the Claimant's claim should be struck out. It was a hearing at which no evidence was led, and there was little agreement between parties regarding what the Claimant regarded as important factual averments in the case.

1. I will continue referring to parties as Claimant and Respondents for the sake of clarity.

1. The Claimant was, at the relevant time, employed by the First Respondent as an EAL teacher, at one point in time at Sciennes Primary School in Edinburgh. EAL stands for English as an Additional Language. This appeal relates to the complaints set out in a form ET1, presented on 22 June 2010, in which the Claimant alleges race discrimination in a statement which contains 123 paragraphs.

1. She had previously, on 13 November 2008 presented a form ET1 in which she alleged victimisation on the grounds of race against the First Respondent and two of the individual Respondents in the present claim. This appeal is not, however, against any decision of an Employment Tribunal in relation to the first complaint. At the hearing before me the Claimant was represented by her husband, Dr P Singh, and all Respondents were represented by Ms Marr, solicitor.

1. As background, I would refer to the Employment Tribunal's Judgment at paragraphs 9 and 43. At paragraph 9 the Employment Judge noted allegations that were set out in paragraphs 7 and 8. I don't propose to rehearse those allegations word for word in this Judgment. We have referred to them in the course of the hearing this morning. It is important for present purposes to note that they include an allegation that there is a glass ceiling on career progression within the EAL service and the Children and Families Department for Ethnic Minorities of the First Respondent.

1. The averments include an allegation of continuing acts of direct discrimination, comprising a hostile and continuing discriminatory state of affairs. They include an allegation of bullying and hostile treatment of a discriminatory nature which had continued throughout the whole period.

1. In the section of the Employment Judge's Judgment between paragraphs 13 and 36 of her Judgment, she sets out the Respondents' case before her and I mean them no disservice by summarising it briefly for the purposes of this Judgment. In essence, the argument appeared to be that the Tribunal had no jurisdiction to consider any acts alleged to be discriminatory which occurred prior to 23 March 2010, as they were out of time. The only act in time was the alleged discriminatory decision of the Personnel Appeals Committee, which took place in March 2010.

1. Thus put, the point is perhaps not quite correctly focused since it would not have been open to the Tribunal to make a determination that it had no jurisdiction in the absence of facts being established. It is, however, clear that the Tribunal approached this on the basis of relevancy and whether or not, on the averments before them, the claim could possibly establish jurisdiction.

1. At paragraphs 31 and 32, it is noted that the Respondent accepted in principle that an act which extended over a period could be treated as being done at the end of that period. Their case, however, was that the Claimant's claim actually amounted to no more than a series of isolated specific acts. No alleged continuing act, in any event, could have continued beyond the issuing of the grievance appeal decision in November 2009.

1. At paragraph 32 there is a note of one of their submissions being that the Personnel Appeals Committee was an independent body; that was because it comprised three councillors, they had no prior involvement with the Claimant's claim, they weren't otherwise implicated in any of the remaining allegations, they didn't include any of the individual Respondents, and the committee were all councillors of the council or teaching staff, apart from Councillor Dawe who didn't sit on the Personnel Appeals Committee. Those assertions however were not, I note, submissions of law but rather assertions of fact for which there was no basis in any evidence before the Tribunal.

1. The submissions for the Claimant before the Tribunal were essentially that the Claimant's written case showed that she was alleging a continuous act of discrimination. There was a case of continuing discrimination in respect that there was an allegation of a glass ceiling throughout and a gradual realisation of continuing racism emerged. So far as the Personnel Appeals Committee was concerned, it is noted that the Claimant's submission was that they worked for the council, they were not separate from the council.

1. When considering her decision, the Employment Judge referred specifically to the case of Hendricks v Commissioner of Police for the Metropolis [2003] ICR 530, a decision which was of course relevant to the issue which she had to consider. She noted the passage at paragraph 52 where Mummery LJ states that in a discrimination case where the allegation is of a continuing act of discrimination under reference to separate acts over a period of time, it was important not to focus only on the question of whether a particular policy could be discerned, rather it was necessary to consider whether the employer was responsible for an ongoing situation or an ongoing state of affairs involving less favourable treatment of those of an ethnic minority. In that particular case, the question was whether there was a continuing state of affairs whereby female ethnic minority officers in the service were treated less favourably.

1. The Employment Judge then noted correctly that she required to ask herself whether, on the averments in the Claimant's form ET1, there was a reasonably arguable basis for her case that she had been subjected to a continuing act of discrimination over a period which extended to March 2010, the time of the Personnel Appeal Committee's decision. Although she stated that she was aware that a Tribunal should be slow to strike out claims of discrimination without hearing evidence at paragraph 41, she later stated that she was aware she should be slow to strike out claims on grounds of time bar, without hearing evidence. That is at paragraph 48.

1. That is, of course, a different issue and it could perhaps be that it was the beginning of her being distracted away from the guidance that has been given where strike out of discrimination cases is sought prior to the hearing of any evidence. If the Employment Judge had considered what was said in, for instance, the case Anyamu v South Bank Students Union and Others [2001] IRLR 305, she would have specifically reminded herself that it was said to be important not to strike out discrimination cases, except in the most obvious and plainest of cases, that that was because they were liable to be fact sensitive, and the bias should, in the public interest, be towards examining the claim on its merits only after having heard evidence because, if evidence is heard, the risk of injustice is minimised and the Tribunal can base its decision on facts found after having heard evidence. I would add to that that it enables a Tribunal then to base its decision on what, in addition, are the proper inferences, if any, which can be drawn from the facts found after having listened to the evidence and having observed the witnesses giving that evidence.

1. The Employment Judge would also, if she had had regard to, for instance, the case of Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, have noted the guidance that it is only in exceptional circumstances that a Tribunal should strike out a discrimination claim as having no reasonable prospects of success. She did herself, ultimately of course, realise that she was exercising the power of strike out, as she does so in terms in her Judgment and, had she looked at Ezsias, it may well have put the brakes on her thinking in this case.

1. Certainly, I recognise that Ezsias dealt for the test where the argument is whether there were any reasonable prospects of success, rather than focusing on the jurisdictional test involved in the consideration of time bar, but I would refer to what I have already said, where the time bar issue arises in a context where evidence is not led and facts remain disputed.

1. The Employment Judge would, if she had considered these cases, have reminded herself that the language used in the guidance given is really very strong and such as to urge Employment Tribunals to exercise great caution before refusing to allow a discrimination case, or any part of it, to go forward to an evidential hearing. Discrimination cases inevitably involve consideration being given to the drawing of inferences and that is a task which is rendered quite different when done on the basis of having heard and seen three dimensional human beings giving evidence, as opposed to restricting consideration to the two dimensional hard edges of the printed word.

1. In the course of the hearing today, Dr Singh helpfully referred also to the case of R v The Governing Body of JFS [2010] IRLR 136, and to Madarassy v Nomura International Plc [2007] EWCA Civ 33. I note, from those cases, the stress that was laid on the importance of ascertaining the facts before reaching a final decision as to whether or not discrimination has occurred. That of course does not detract from the requirement that a party make relevant averments as to what they say are the facts in the case, but it does properly highlight the importance and significance of finding out what actually happened, where discrimination is alleged.

1. At paragraph 50 of her Judgment, the Employment Judge rejects the proposition that there is a prima facie case that the decisions and acts of the council's managers and those of its Personnel Appeals Committee are part of one continuing act because, according to her reasoning, the former are employed managers and the latter involved solely, she says, although no evidence was heard about this, elected councillors.

1. She accepted, without hearing evidence, that the Personnel Appeals Committee was wholly independent but she has, it would seem, failed to have observed that even putting the Respondent's submissions at their highest, what had taken place was that those employed by the council, namely managers, were making a case before the council, their employer. The picture does not appear to be one of independence from the employer at all.

1. In the course of the hearing today, I posited the example of a senior manager of a business hearing a disciplinary hearing and the appeal being to the board of the company and questioned why that would be any different a situation from what occurs in the council; Ms Marr was not able to provide a satisfactory answer.

1. I see from paragraph 51 and 52 that, separately, the Employment Judge remembering, it would seem, that there were averments to the effect that there was institutional racism and a glass ceiling operating, disposed of the glass ceiling argument by noting that the specific allegation about a glass ceiling only related to Ms Porter and the latest allegation in relation to her was February 2009. Also, she states that, so far as the case for institutional racism was concerned, it fell to be rejected because the complaints didn't begin until 2005 and only related to one particular school.

1. I accept that she appears to have fallen into error in approaching matters on that basis. She has tested the Claimant's pleading by looking only at the allegations of the specifics and asking whether they could point to there being a continuing act, in particular, whether they could point to there being institutional racism or the operation of a glass ceiling. What she required, however, to do was take account of the fact that there was an overarching allegation as set out in paragraph 7 and 8 in the statement attached to the form ET1, and that it appears to be to the effect that all the acts complained of were tainted or driven by the institutional racism referred to there.

1. It is important, however, that parties appreciate that the observations I have made are not to be taken as being to the effect that I am satisfied that the Claimant's case is well founded. Were I to do that I would fall into the same sort of trap as the Employment Judge has done. The point is, it is too soon to say one way or the other. It is plain to my mind that, on the pleadings in this case, the Claimant has set out a prima facie case that there has been a continuing discriminatory act extending over the whole of the period referred to, and on those pleadings , the claims struck out in this Judgment are not time barred. Whether she can establish her averments as fact and persuade a tribunal to draw discriminatory inferences is, of course, another matter, and is not to be taken as having been in sense pre-determined by this decision.

1. I would add that if the Claimant's claim is well-founded on the facts, then it is not time barred. If it is, and all the acts referred to are properly, separate, unconnected act or there is, in fact, a separation between November 2009 and the Personnel Appeal Committee decision in March 2010, then the Claimant will have a time bar problem, irrespective of her requiring to overcome the hurdle of establishing that her evidence as to what happened should be accepted, that she did suffer less favourable treatment, and that those facts show that a Tribunal could properly infer that what occurred was discriminatory.

1. At this stage, however, I am satisfied that the claimant should be permitted to proceed to an evidential hearing where she can have the opportunity to seek to persuade a Tribunal that she can overcome all these hurdles, time bar included, in respect of her claim, before any further decisions are taken on it. I will accordingly uphold the appeal and I will remit this case to the Employment Tribunal to proceed as accords. No doubt the Tribunal may wish to hold a Case Management Discussion but I do not see it as any part of my function to tell them which particular procedure to employ next. To that end, I notice that Dr Singh will have a motion to make about amendments and about diets to be set, but those are matters which will need to be addressed before the Employment Tribunal.