The claimants were contract workers who had been banned from working at the site of the principal. They tried unsuccessfully to gain entry to the site a couple of times within 2 weeks after the ban. They maintained that the ban was for discriminatory reasons, namely race. They brought their claims 6 months after the last time they were refused entry, and therefore 3 months out of time, but claimed that their claims were in time because the ban was a continuing act. The ET rejected this argument and the claimants appealed.

The EAT upheld the ET decision. Here, the focus in the originating applications was undeniably on a short sequence of events starting with the ban and ending with the last unsuccessful attempt to gain access to the site. There was no further act within the 3 months following the last attempt, nor for the further period that elapsed before the claims were taken to the ET. The allegation was not of a continuing act.

______________

Appeal Nos. UKEAT/0318/10/ZT

UKEAT/0319/10/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 May 2011

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (SITTING ALONE)

(1) MR A A OKORO; (2) MR H OKENWA (APPELLANTS)

(1) TAYLOR WOODROW CONSTRUCTION LTD; (2) COYLE PERSONNEL PLC; (3) MANE CONTRACT SERVICES LTD (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellants
MS HEATHER PLATT (of Counsel)

Instructed by:
St Valchikwe Solicitors
729 High Road
Ilford
Essex
IG3 8RL

For the First Respondent
MR BEN COOPER (of Counsel)

Instructed by:
Messrs Magrath LLP Solicitors
66/67 Newman Street
London
W1T 3EQ

For the Second and Third Respondents
MR CYRIL ADJEI (of Counsel)

Instructed by:
SA Law Solicitors
60 London Road
St Albans
Hertfordshire
AL1 1NG

JURISDICTIONAL POINTS – Claim in time and effective date of termination

Contract workers banned – they claimed for discriminatory reasons – from working again for the principal. Claim brought some 6 months after this. Question was whether the ban was an act extending over a period, so as to confer jurisdiction, or whether Employment Tribunal was entitled to hold (as it did) that it was not. ET decision upheld. The decision was one of fact, and here there was neither a misdirection in law nor perversity.

1. Two short decisions by Judge Mahoney at the Watford Employment Tribunal made in 2009 involve areas of employment law that have troubled the courts persistently over some years. At a pre hearing review on 24 March 2009, the Employment Judge, in reasons delivered to the parties on 21 July 2009, refused to accept jurisdiction so far as the Appellants' complaints that they had been racially discriminated against were concerned. On 5 August 2009, he made an uncapped wasted costs order to the extent of £40,508.42 against the solicitor who had appeared for the Appellants before the pre hearing review.

1. There are in form appeals against both decisions before me today, with the permission of the Judge following a rule 3(10) application. However, so far as the second is concerned, the Appellants are no longer represented by their former solicitor. His personal appeal was one which, according to the records at this Tribunal, he was notified would take place today. He did not appear before the Employment Judge when the Employment Judge made his ruling that the costs had been wasted by his unreasonable behaviour or negligent conduct of the Appellants' cases. He has not appeared before me today to argue his appeal. That being the case, I have no proper basis for concluding that the Judge's reasoning, which was set out in full, directed in accordance with the principles as they are properly to be understood and in respect of rule 48 of the Employment Tribunals Rules of Procedure 2004, was in any sense in error. Therefore, having considered the Notice of Appeal which the solicitor entered, and having considered the careful nature of Judge Mahoney's reasoning in this respect, I have not thought it necessary to call upon the Respondents in resistance of the appeal; it not being pursued before me, and my being satisfied that on the face of the papers there appears to be no obvious error of law in the conclusions or approach of the Tribunal Judge, that appeal must be dismissed.

1. The argument as to the first appeal before me has however benefitted substantially by representation from all parties; from Ms Platt, for the Appellants, Mr Cooper, for the First Respondent, and Mr Adjei, for the Second and Third Respondents, to whose submissions I pay tribute. The issue upon which jurisdiction fell to be determined was whether the claims had been brought in time. Section 7 of the Race Relations Act 1976 defined the context of the claims. They were claims brought by contract workers maintaining under section 7(2) that it was unlawful for the principal (First) Respondent to discriminate against a contract worker, (which following the pre hearing review it was established each of the Appellants was) "(a) in the terms on which he allows him to do that work or (b) by not allowing him to do it or continue to do it."

1. For the purposes of such a claim, section 68(1) of the Race Relations Act 1976 provides that a claim must be brought in the Employment Tribunal within three months, beginning with the date of the act complained of. Therefore the date of refusal to permit a contract worker to work for a principal must be normally within three months of the date of submission of originating application that the refusal was discriminatory. That position is modified by section 68(7) which provides materially so far as follows:

"For the purposes of this section

[...]

(b) any act extending over a period shall be treated as done at the end of that period [...]."

1. The Tribunal Judge set out the contrasting submissions of the parties to him that there was here what was said to be a continuing act of discrimination (that being alleged by the Appellants) as opposed to the Respondents' case that it was a "one off" act.

1. The Employment Tribunal did not hear evidence. It took certain facts to be agreed and set them out at paragraph 4 of its decision. I need only highlight some of those facts to show the context within which this appeal falls to be decided. The First Respondent, Taylor Woodrow, employed workers such as the Appellants through the agency of the Second and Third Respondents, who in turn employed the Appellants through individual service companies whose principals in effect were the Appellants themselves. At the site of work on the Docklands Light Railway, where work usually took place at night, a designated person called a PICOW (Person In Charge Of Works) was required. Temporary PICOWs were frequently hired by the First Respondent from an agency for that purpose. The arrangements under which they were provided included terms that if they were found to be unsatisfactory they would be sent off site, and that individual operatives might be ordered off site for misconduct, non compliance with safety measures or failure to observe the terms of a framework agreement.

1. Both the Appellants were PICOWs. The Tribunal set out that on 6 April 2008 they had been engaged through the Second Respondent to work as PICOWs for Taylor Woodrow. When they arrived on site the first Claimant was told by Mr Williams, a co-ordinator/supervisor in the employment of Taylor Woodrow, that he was not going to be a PICOW that night, and that if he was not happy he should go home. The second Claimant spoke to Mr Williams to say that he was there to do crane duty but was told that there was no crane duty available for him. The First Respondent's case was that that was because there had been an oversupply of PICOWs that night due to a mix up in the bookings, and alleged that there was an altercation that followed as a result of which, and as a result of the intemperate behaviour, it was alleged, of the Appellants, they were no longer welcome on site.

1. That information of course comes, one would have thought, only from the ET3 filed by the Respondents, but it is nonetheless set out in the Tribunal decision as an agreed fact, and there is no complaint that the Tribunal wrongly identified those facts as having been agreed. The Tribunal went on to record that Mr Williams had spoken to his manager and it was agreed that the Claimants would be banned from the site and from any other DLR project because of their behaviour. Thus when the Claimants attended on 7 April 2008 they were told they were banned from the site. On 18 April 2008 both Claimants obtained a PICOW engagement at the same site, through the Third Respondent on this occasion, but when they arrived they were again informed they were banned from the site.

1. The decision of the Tribunal is contained in three short paragraphs. The first set out the submissions made on behalf of the Claimants that their claims, having been brought on 6 August 2008 and therefore well over three months after the 18 April 2008 when the last of those acts occurred, were nonetheless within time. That was because it was said to be a continuing act of discrimination to ban them from working for Taylor Woodrow. Alternatively, the submission was to the effect that it would be just and equitable to extend time if the first argument did not appeal to the Tribunal Judge.

1. The Judge set out the law in these terms:

"There is a distinction between a one-off act with continuing consequences, which is not an act extending over a period, and a continuing policy or series of acts extending over a period which amounted to an ongoing state of affairs (see Sougrin v Haringey Health Authority [1992] IRLR 416).

**Conclusion**

The Tribunal concludes the banning of Claimants from the first Respondent's site was a one-off decision with continuing consequences. The last act complained of could therefore only be on 18 April 2008. The claims for race discrimination were therefore brought outside the primary time limit, which expired on 17 July 2008."

1. The Tribunal went on to say that there was no just and equitable basis upon which to extend time. There has been no appeal against the exercise of that discretion.

1. Two observations need to be made: first, that no evidence was heard by the Tribunal in reaching the conclusion set out at paragraph 10 above; secondly, though the conclusion is tersely expressed, no challenge has been made before this Appeal Tribunal upon a "reasons" basis.

1. The question whether an act falls within section 68(7)(b) of the 1976 Act as being an act extending over a period is a question of fact for the Employment Tribunal to determine. That is accepted by Ms Platt; it is, in my view, uncontroversial. Therefore, for a decision as to whether there has been a continuing act or alternatively, if this is the relevant distinction as I am persuaded it is here, a one-off act, the decision of the Tribunal may only be successfully impugned if the Tribunal has wrongly directed itself as to its approach in law or has reached a conclusion that is perverse. Here, it is not contended that the self direction in law contained in paragraph 14 is in error; it is contended by Ms Platt that nonetheless there was a failure to appreciate what matters might legally constitute a continuing act as opposed to a one off act. Otherwise, she accepts she has to surmount the very high hurdle which is posed by the test of perversity to persuade this Tribunal that it was simply not open to the Tribunal Judge here to conclude that this was anything other than a continuing act or, in the words of the statute, an act extending over a period.

1. The approach, as it seems to me, that is urged by the cases and in particular by Mummery LJ in the case of Hendricks v The Commissioner of Police for the Metropolis [2003] IRLR 96 is this: that a Tribunal should approach the question of whether acts are or are not continuing acts by looking at the substance of the case before them (see paragraph 51). It might be useful to apply concepts of policy, rule, practice, scheme or regime, but such examples of acts which extend over a period should not be treated as a complete and constricting statement of the indicia of an act extending over a period. The focus should be on the substance of complaints. In the case of Hendricks itself the relevant question was whether what was alleged was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.

1. To focus on asking of what in substance complaint is made in a case in which there has been no evidence inevitably takes one to the originating application before the Tribunal, as it may be explained or amplified (if the Tribunal permits it) by the submissions of the Claimants' representative before it. Therefore I look here to see what in essence was the complaint brought first by Mr Okoro. For convenience in the argument before me Mr Cooper, for Taylor Woodrow, invited my attention to what are described as amended details of the Claimant's complaint. The complaint in so far as amended was by decision of the Employment Judge not permitted to go before the Tribunal; the amendments were refused. The appeal against that decision was dismissed by HHJ McMullen QC upon a rule 3(10) hearing, having been dismissed earlier by another appellate Judge on the sift. The appeal against that decision is not pursued. Accordingly, in looking at the allegation on the basis of which the decision as to whether there was a continuing act had to be made, I can have regard only to the unamended parts of the originating application.

1. On 6 April 2008 Mr Okoro complained that he turned up for work, greeted Steve Williams, and told him that he had come for PICOW duty. He was told, snobbishly it is said, that he was not going to be a PICOW that night, and if he could not take it he should go home. Mr Okoro told him later that he was going home. On the next day, as he came to work at the same site and was entering the yard, he heard Mr Williams shout, "stop him - that is the one." (That might be thought to be a decision entirely personal to Mr Okoro, and not directed at any characteristic of him which he might share with others such as being black.) He was told then by someone (effectively, a doorkeeper) that he was not required at the yard. When that was queried Mr Williams brought out a white sheet of paper and said that his (Mr Okoro's) name was included in the list of people who would not enter or work in the yard any more. Mr Okoro asked him why; that did not have a proper response, but he was simply told that if he had any further questions he could contact the night manager, but as far as he (Mr Williams) was concerned, Mr Okoro was not going to work there any more.

1. On 8 April he was told by a manager for the Second Respondent that he had been banned from any of the Taylor Woodrow projects. On 18 April 2008 he went under contract with the Third Respondent to the yard, and to the normal meeting place. When he was seen by Mr Williams, he was told that he and one other were not supposed to work on the LIVO Yard site from which they had been banned, but they should wait for some minutes for him to reconfirm that. He then asked them to leave. Mr Okoro expressed the belief (paragraph 29) that the decision to ban him from Taylor Woodrow's sites was motivated on racially discriminatory grounds. It should be noted that in the unamended claim there is reference to "white lads" receiving work, but no reference to the ethnicity of the workforce as a whole, nor to the racial identity of one other (Giles) who was also excluded at the same time.

1. The submissions in the case of Mr Harris Okenwa contained in the amended complaint in his case, which likewise was permitted to proceed only in so far as unamended, were to the same effect. He too set out the events of 6 April 2008 - that Mr Williams had said he did not ask for them (that is, him, Mr Okoro, a man called Giles and another Mr Okoro) and asked who had sent them. He went away and returned saying that he did not think that Mr Okenwa and the others would be working there that night, but if they wanted to hang around they could hang around until the shift ended; if they did not want to hang around, they could go. On 7 April 2008 he (Mr Okenwa) told Mr Foster of the Second Respondent what had happened. On 8 April 2008 he was called by Mr Foster to say that Taylor Woodrow did not want Mr Okenwa back on the job at Livo Yard. He had worked, as it happens, on the 7 April 2008. On 18 April 2008 he, together with Mr Okoro, had gone to the yard through the agency of the Third Respondent and was told he would not be working that night. He too expressed in similar terms in paragraph 29 his belief that the decision to ban him from Taylor Woodrow sites was motivated on racially discriminatory grounds.

1. In summary, therefore, the complaints as made in the originating applications focussed heavily on the conduct of Mr Williams, an employee of Taylor Woodrow, for whose discrimination, if any, they would be liable. It relied upon the inference to be drawn from the fact that each of the Appellants had been assured there would be work for them at the site; each saw others who were white having work; each were told that they were not welcome that night, without any further reason being given; and were told, for no apparent reason, that they were being banned from the site. The events of 7, 8 and 18 April 2008 followed closely in time and again were focussed upon the behaviour of Mr Williams and his maintenance of the earlier view that he had expressed.

1. It seems plain from the Employment Tribunal decision that the Judge felt able with the assistance of the parties, who were professionally represented, to take a broader view of what facts could be agreed for the purpose of the determination which he made. No complaint is made before me as to that, but I have thought it right in the circumstances to go back to the originating applications which, as I say, appear to focus heavily on the activities of one employee in the service of a large organisation on a few days in April 2008.

1. For the Appellants, Ms Platt does not seek to distinguish their cases; nor has any counsel before me. Although they are separate cases and worthy therefore of separate consideration, I have thought it appropriate in this case to deal with them together. She submits that this is not and could not properly be said to be a case of the Sougrin or Amies v Inner London Education Authority [1977] ICR 308 EAT sort, in which an act of discrimination has continuing consequences, and it does not become an act extending through a period simply because of the effect of those consequences. Amies was a case in which the applicant had complained that she had been denied the job of departmental head of the school at which she taught by reason of discrimination against her on the grounds of sex; a man had been appointed instead. In consequence she went on receiving a lesser salary than he did. She maintained that she was entitled to bring a claim outside the three month period. In giving the decision of the Tribunal Bristow J said:

"Like any other discrimination by act or omission, the failure to appoint her, and the appointment of him, must have continuing consequences. She is not the head of the department; he has been ever since 13 October 1975. But it is the consequences of the appointment which are the continuing element in the situation, not the appointment itself [...]."

1. But he then went on to observe this:

"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 that the rule was abrogated within which to bring the complaint. In contrast, in the Applicant's case clearly the time runs from the date of appointment of her male rival. There was no continuing rule which prevented her appointment. It is the omission to appoint her and the appointment of him which is the subject of her complaint."

1. In Sougrin, a black staff nurse was graded E upon regrading of Health Service nursing staff. So too were both a white and a black colleague. The three nurses appealed against that decision, seeking to be placed in grade F. The appeal of the white colleague was successful; Ms Sougrin's was not. She complained that she had received, and was still subject to, an unfair grading. She alleged that this was an act of discrimination that extended over a period. The Tribunal held that the discriminatory act complained of was the decision to dismiss her appeal against her grade, which was not a continuing act, although its consequence was that she continued to be paid wages at grade E which were some £2,000 a year less than they would have been on grade F. An appeal against that decision was dismissed both by this Tribunal and on further appeal by the Court of Appeal, whose Judgment is reported at [1992] IRLR 416. Balcombe LJ said (paragraph 13) that in his judgement:

"The analogy between the Amies case and the present case is close. Mrs Amies was not appointed head of department and continued as deputy head, presumably at a lower salary. Ms Sougrin was not upgraded to grade F and continued at grade E at a lesser salary. There was no rule that a woman could not be promoted to head of department. It is not suggested here that Haringey had a rule that a black nurse could not be promoted to grade F. It is the refusal to upgrade Ms Sougrin and the upgrading of Mrs Mobey which is the subject of Ms Sougrin's complaint."

1. He contrasted that with the position that pertained in Calder v James Finlay Corporation Ltd [1989] IRLR 55, where a woman had applied to her employers for a mortgage subsidy which by policy they granted to male employees over the age of 25. When she reached 25 and applied for such a subsidy she was refused. She complained within three months of leaving her employment that she had been discriminated against by refusing her that subsidy on the grounds that she was a woman. The Industrial Tribunal there held it had no jurisdiction to entertain the complaint because it had not been made within three months of the date on which she had last been refused a mortgage, but the Appeal Tribunal allowed the appeal. It had been pointed out that, there being a scheme under the rules of which a female could not obtain the benefit of the mortgage subsidy, she was discriminated against on a continuing basis.

1. Barclays Bank PLC v Kapur [1991] IRLR 136 itself was a similar case, involving as it did five applicants of Asian origin who had been employed by banks in countries in east Africa from whence they had come to the United Kingdom in the 1970s, becoming employees of Barclays Bank in the UK. Their previous service with east African banks had not been taken into account in computing their pension entitlement under the bank's pension scheme. The terms of their contracts of employment made it clear that that refusal applied specifically to Asian employees. When they subsequently discovered that employees of European origin with similar bank service in Africa had been credited with that service in computing their pension entitlement, they complained. The decision in their Lordships' House was that there had there been a continuing act of discrimination. Lord Griffiths had considered the difference between a one off decision and a continuing state of affairs: this was the latter.

1. It was argued by Ms Platt that the facts of this case came within the category of those cases such as Calder and Kapur as one in which there was a continuous state of affairs. She drew my attention to the case of Rovenska v General Medical Council [1997] IRLR 367; [1998] ICR 85 CA. That was a case in which a doctor who had qualified in Czechoslovakia sought registration by the GMC to work as a medical professional within this jurisdiction. By rule of the GMC she was not regarded as possessing the professional knowledge, skill, experience and proficiency in English necessary for a limited registration unless she had first passed or been exempted from a test conducted by the Professional and Linguistic Assessments Board (PLAB). She twice failed that test. She attempted unsuccessfully to secure exemption. Her final attempt was in 1991. When it was pointed out to the GMC that she had passed an MSc in medical microbiology in English, and a reference was given as to the quality of her English, the GMC gave the same response. She complained that she had been discriminated against on the grounds of her national origin. Although the Industrial Tribunal rejected her complaint, this Tribunal allowed an appeal, and a further appeal to the Court of Appeal was dismissed. It was a case of indirect discrimination, but it was argued by counsel for the doctor (see paragraph 28) that the terms upon which the GMC was prepared to confer limited registration were just as much a continuing act of discrimination as was the maintenance of a discriminatory regime of the type the courts had had to consider in cases like Kapur. The determination was that if the regime was inherently discriminatory then on every occasion that the GMC refused to allow her to have limited registration without first taking a PLAB test it would be committing an act of unlawful discrimination. The refusal of the exemption made on the last occasion, which was less than three months before a complaint was made to the Tribunal, was one such occasion, and for that reason the appeal was dismissed.

1. She draws my attention further to the case of Coutts & Co PLC v Cure [2005] ICR 1098. That was a case in which what fell for consideration were the provisions as to presentation within time of a complaint brought under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. Those provisions as to time are not in precisely the same terms as those that fall for consideration here. It is accepted by all counsel that the observations made for the Tribunal by HHJ McMullen QC, so far as they deal with a continuing act at paragraph 28, are obiter. Nonetheless, they comprise a useful overview of that which the cases had described. He said (paragraph 28):

"The factual circumstances in which discrimination [might occur] have been illustrated in the authorities as falling into one of the following categories.

(1) A one off act of discrimination, such as a refusal to promote, which has continuing consequences for this disappointed candidate.

(2) An act extending over a period of time, constituting a rule or policy, by reference to which decisions are made from time to time.

(3) A series of discriminatory acts, whether or not set against a background of a discriminatory policy."

1. He went on to observe that:

"Time runs for a category (2) complaint when the discriminatory rule is abrogated; and it will also run in the case of the specific application of the rule to any given employee, eg in refusing promotion, from the date of that application."

1. It is submitted that this case should properly have been categorised as falling within the second category and not, as the Tribunal categorised it, in the first.

1. The Respondents observe in respect of this authority that in paragraph 28(2) HHJ McMullen QC referred to an act, "[...] constituting a rule or policy, by reference to which decisions are made from time to time." That must, it is argued by the Respondents here, be seen and read in the light of the observations of Mummery LJ in the case of Hendricks as not to be treated as a "complete and constricting statement of the indicia of an act extending over a period". The focus is really upon whether there is any ongoing situation or continuing state of affairs which is discriminatory. Subject to that, it is said that the Coutts case is a useful summary.

1. Finally, in review of the authorities, my attention was drawn to the case of Cast v Croydon College [1998] IRLR 318. In that case the appellant sought a jobshare, which she had been refused. She resigned her post and submitted an Industrial Tribunal application within three months of that resignation. The Industrial Tribunal found that any act of sex discrimination occurred when the request to jobshare or work part-time was first refused, and that what had occurred thereafter was a repetition of the request and refusal. This Tribunal dismissed her appeal. She appealed to the Court of Appeal, who allowed her appeal. They did so upon the basis that both the Industrial Tribunal and this Tribunal had erred in holding that the appellant's complaint that the respondents had discriminated against her on grounds of sex by refusing her part time work after she returned from maternity leave was out of time, because her request to work part time was first refused prior to her maternity leave, and her originating application not submitted until after she returned from that leave, when further requests for working part time were again refused. The principle that was established was that the application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time was an act extending over a period. There could be a policy even though it was not of a formal nature or expressed in writing and even though it was confined to a particular post or role. I should emphasise those last words for reasons which will become apparent.

1. The case was treated on appeal as one in which there had been a complaint relating to a number of decisions; each one of which amounted to a fresh refusal of a fresh request to work part-time. Auld LJ said this (paragraph 24):

"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."

(25) 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 [...] and Sougrin [...].

(26) As to an act extending over a period, the authorities make clear – at least in the case of discrimination in the field of employment [...] – 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."

1. At paragraph 34, he added this:

"Regardless of the claimed existence of a policy and of whether the claim relates to a feature or 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."

1. Ms Platt argues that this is not here a case simply of reference back to an earlier decision; that is, the decision to ban. In light of the authorities, she submitted that the Claimants had the option to claim that a policy was discriminatory each time it was applied to them, or to claim that the policy itself was discriminatory; that there was a continuing policy, and therefore potentially a continuing act of discrimination. That policy still continues, she argued.

1. For the Respondents, Mr Cooper argues first that the court should have careful regard to the nature of the complaints, just as Auld LJ, in the passage I have last cited, urged. There was no complaint, he submits, that there was in this case any continuing policy; certainly in so far as the originating applications are concerned, that observation appears well founded, though a policy might be derived from the facts. He accepted that it might not be necessary for a claimant to set out in terms in their originating application that they were alleging that there was a policy or rule against them if the facts could fairly be construed to that result.

1. He argued that the focus of the originating applications was on the events of 6 April 2008 and thereafter one event, in effect. He went on to argue that this was a decision that was individualised so far as the Claimants were concerned. There was no suggestion that Taylor Woodrow operated any generalised policy to disadvantage those who were not white within their workforce; it was a decision with specific reference to these two Appellants. That, he submitted, mattered. Thus he argued that in the case of Kapur, Barclays Bank had operated a policy which affected anyone who might be subject to it. Kapur might have been the Appellant in the particular case, but the policy was one which was general to all in her position. The same could be said of Calder, where the mortgage subsidy was denied on the basis of gender and not on a basis specific to Mrs Calder herself. It was true too of the case of Rovenska, where there was a general policy that applied to the claimant's disadvantage just as it would to anyone in her position. Contrast that, he suggested, with the cases of Amies and Sougrin, in both of which the decision, said to be a continuing act, had been one individualised to the employee concerned.

1. The right way to analyse the case, he submitted, was therefore to look at what was at the root of the claim. He argued that the Tribunal here had properly directed itself; it had, in the light of that proper direction, come to a conclusion that was open to it, and indeed, he submitted, was self evident. The root of the claim was an individualised act by the employer, not anything that could fairly be described as a policy general to all, at least of the same sort as that relied upon in the cases to which he made reference. The case of Cast demonstrated that even where there was a series of acts it might all be referable to one decision. There was a distinction made there (see paragraph 34) between acts that involved a further consideration of the matter as opposed to merely being a reference back to an earlier decision. The former might be a fresh act of discrimination and not form part of a series of acts; the latter was simply a further manifestation of what had been a one off act.

1. He urged that here there was an act with consequences, the consequence being a refusal to re-engage, and that this approach, bearing in mind the nature of the allegations in the originating application, was in line with the intendment of the Race Relations Act, which was to prevent stale claims by applying limitation provisions to them, thus avoiding employers being faced with allegations which had become more difficult to defend by reason of the passage of time.

1. Mr Adjei was in the happier position on behalf of the Second and Third Respondents of not facing any consequence from a finding one way or the other on the complaint against Taylor Woodrow, since it was not at all evident that any case could properly be made against the Second or Third Respondents. That proposition has not been challenged here by Ms Platt; nonetheless, he volunteered some helpful observations, to which I shall come in due course.

1. In the course of argument two analogies featured. The first arose from asking what in principle distinguished the present case from that of an employee who was dismissed from his employment by reason of racial discrimination against him. Such a case would involve continuing consequences for that employee. In the practical world he could not sensibly apply for his old job back having once been dismissed. Ms Platt recognised that that would be a one off act notwithstanding consequences not very different from those that the two contract workers here suffered. The analogy may suffer from the fact that those who are dismissed from employment have a contract which is terminated. Here, the allegation is not one of losing a contract, which itself was not terminated save on an individual occasion, but of being banned from effectively offering oneself for future contracts; akin more, perhaps, to an "application for a job" case than a "removal from office" case.

1. The second analogy, which might be said to work the other way, would be that of the publican who on the grounds of his ethnicity bans a would be drinker from ever setting foot in his public house again. Would that be a one off act (a decision to issue the ban), or would it in truth be a continuing proscription of that drinker from the public house premises thereafter? Mr Adjei argues that the analogy with dismissal is apposite. It is how the ordinary person would understand the position; anyone dismissed or anyone who was sent home as a contract worker and told not to come back again would be in exactly the same position. The characteristics would be that it would be a decision individually reached, not of general application to the workforce as a whole, and it would still maintain its character as an act effectively committed by the first sending home despite requests thereafter by the employee to return; just as the worker who had been sacked from employment would be met by the words, "no, you've been dismissed," so too would the contract worker. He argued that by contrast the ban could in some circumstances be a continuing act, but where the ban is issued on one occasion and any further attempt is met by the words, "you have been banned," as here occurred, it would appear, from the allegations when the Appellants returned to challenge Mr Williams, this would be a reference back to the original decision just as was anticipated in the Cast case. The way in which the Applicants had put their case at the pleading stage was to assert one-off actions in April 2008 and not to assert a policy. The echoes of the acts might continue, but those were referable to the original decision.

1. There are aspects, as it seems to me, of the submissions made by Mr Cooper that I am unable to accept. I cannot accept that it is correct to hold that because an application of an alleged policy is to an individual and not to the workforce generally, that it necessarily becomes a one-off act whereas if it had been applied to the workforce generally it would have been a continuing one. I cannot accept that because it seems to me the focus has to be upon the statute in the first place. The statute does not use the words 'policy', 'rule' or 'regime'; as Mummery LJ pointed out in Hendricks, it asks simply that an act extending over a period be identified by a Claimant if it is to fall within section 68(7)(b). I see no reason in principle why that should not be an act relating to an individual, as it plainly relates to the individual in question by section 68, or why such acts should be restricted to those applying to the workforce as a whole. The right given by statute is an individual and not a collective right. I do, however, accept that it is relevant to take into account the fact that the policy, if a policy is referred to, which is alleged is one which applies only in the case of an individual. This might as a matter of fact incline a Tribunal in its fact finding exercise to conclude that there is no general policy, and therefore to look more critically to see whether in truth what is happening in the case before it is the manifestation of a one off set of acts, or a continuing state of affairs.

1. Secondly, I cannot accept too readily the argument that Mr Cooper suggests that this is a case in which what is alleged are the consequences of an earlier act. In Amies and Sougrin, from which this submission comes, the act of discrimination was of a very different character from the continuing consequences alleged. A failure to promote on the one hand, and a failure to re grade on the other, were both different in character from the lower level of pay which was consequential. Here, the allegation is made under section 7 of the 1996 Act; it is that the employers did not allow the contract worker to work or continue to work. The consequence alleged here, if it is a consequence, is of exactly the same nature and character as the act which is said to give rise to it. This, it seems to me, is something which the Tribunal is entitled to put into the assessment in weighing this case toward the act being a continuing one rather than being a single act with continuing consequences, for it is of the nature of consequences that they are in general distinct from the acts in relation to which they are consequential.

1. Although I have those reservations about Mr Cooper's arguments, I do not accept Ms Platt's submissions that the Tribunal was in error in failing to appreciate what might constitute a continuing act as opposed to a one-off act. The Tribunal had to direct itself by reference to the statutory test, and determine the issue as one of fact. I accept in general terms the force of the points that Mr Adjei makes here as to the analogy which might (though tentatively) be drawn between the situation here and that of dismissal from employment. It seems to me, however, that the matter cannot be resolved by analogy; it must be examined as a matter of principle. The essential question is whether the allegations which a claimant seeks to put before a Tribunal focus upon events at one point in time, albeit spread over a few days, or whether they focus upon that which Mummery LJ in Hendricks called a continuing state of affairs. To term something a 'ban' might involve either. Here, however, the focus in the originating applications is undeniably upon a short sequence of events in April 2008. The latest of those was on 18 April 2008, and indeed that on 8 April 2008, was by reference to a banning which had occurred as a matter of decision on 6 April 2008. There was no further act since for well over the three months following 18 April, and for the further period that elapsed before the applications here were first made to the Tribunal. The allegation (in the unamended claim) was not of a continuing act.

1. Such was the focus of the allegations in the claim and, I infer, from the facts set out as agreed before the Tribunal (see paragraph 4) that I am bound to conclude that it was at least open to the Tribunal to think that here the real complaint being made to it was of the behaviour of Mr Williams as an employee of Taylor Woodrow, when he behaved towards the Claimants in a manner that they thought might well be discriminatory on the nights of 6, 7, 8 and 18 April 2008, and that they were not maintaining that these were acts which in any real sense could be equated to the type of regime, policy or rule identified in some of the cases, and therefore to find as a matter of fact that what was alleged was not an act extending over a period such as to confer jurisdiction. The acts complained of extended over a period, perhaps, but the period ended on 18 April 2008 and did not extend thereafter.

1. Accordingly, as it seems to me, I come back to where I began this Judgment. Though necessarily because of the argument this decision has been of much greater length, I have concluded that the decision of the Tribunal tersely stated was one that it was entitled to reach. It reached it on a proper self direction of law. I cannot say that it was perverse. This appeal must fail.