The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing discrimination: ‘the tribunal erred in law in failing to treat the acts complained of on regrading and failure to give the opportunity to act up as continuing acts . . in our view the allegations amount to a prima facie case that there was a continuing act. The continuing act was in the form of maintaining a practice which, when followed or applied, excluded Mr Owusu from regrading or opportunities to act up.
The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of Mr Owusu.
It would be a matter of evidence for the tribunal as to whether such a practice . . in fact exists. It may be that, when explanations are given by the respondents, it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice.’
Mummery J
[1995] UKEAT 334 – 93 – 0103, [1995] IRLR 574
Bailii
England and Wales
Citing:
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Cited by:
See Also – London Fire Civil Defence Authority v Owusu EAT 8-Oct-1997
. .
Cited – Cast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
Cited – British Medical Association v Chaudhary CA 15-May-2003
The claimant had sought registration as a specialist medical practitioner by the respondent. His complaint that the crtiria used to reject his claim were discriminatory had been rejected by the employment tribunal and EAT on the basis that they had . .
Cited – Lyfar v Brighton and Sussex University Hospitals Trust CA 14-Nov-2006
The claimant appealed against rejection of her claim for race discrimination as having been made out of time. . .
Cited – Mawhirt v British Telecommunications Plc FENI 26-Mar-2007
. .
Cited – Spencer v HM Prison Service Agency EAT 3-Dec-2003
EAT Practice and Procedure – Preliminary issues . .
Cited – MA v Merck Sharpe and Dohme Ltd EAT 14-Apr-2008
EAT Race Discrimination – Continuing Act
Practice and Procedure – Striking-out/dismissal
Allegations of racial discrimination occurring over lengthy period of time. Meaning of ‘act extending over a . .
Cited – Fullerton v Interights International Centre for The Legal Protection of Human Rights EAT 19-Feb-2010
EAT JURISDICTIONAL POINTS:
2002 Act and Pre-Action Requirements
Claim in Time and Effective Date of Termination
Extension of Time: Reasonably Practicable
The Tribunal at a pre-hearing review . .
Cited – Fearon v Chief Constable of Derbyshire EAT 16-Jan-2004
EAT ‘This case concerns the correct test to be applied when an allegation of victimisation is made under the Race Relations Act; and the correct approach to handling a series of allegations of race discrimination . .
Cited – P Pathak R Chaudhary v Secretary of State for Health and others the Specialist Training Authority Appeal Panel and others EAT 8-Jan-2004
EAT Race Discrimination – Indirect . .
Cited – Grant v Department of Finance and Personnel FENI 13-Nov-2007
. .
Cited – MA v Merck Sharp and Dohme Ltd CA 16-Dec-2008
. .
Cited – Armstrong v Chief Constable Of the Police Service for Northern Ireland NIIT 3-Aug-2009
Claims for direct and indirect sex discrimination dismissed. . .
Cited – Robertson v Bexley Community Centre (T/A Leisure Link) EAT 4-Jul-2002
EAT Race Discrimination – Direct . .
Cited – Henry v London Borough of Newham EAT 13-May-2003
EAT Race Discrimination – Indirect. . .
Cited – Preston Borough Council, Geoffrey Driver v S Harrison Geoffrey Driver S Harrison, Preston Borough Council EAT 11-Mar-2003
EAT Sex Discrimination – Victimisation . .
Cited – Murali v British Medical Association EAT 8-Sep-2003
EAT Race Discrimination – Indirect . .
Cited – Dime v Brent, Kensington, Chelsea and Westminster Mental Health NHS Trust EAT 6-Nov-2002
. .
Cited – Robertson v Bexley Community Centre CA 11-Mar-2003
The claimant brought his claim in discrimination, but it was out of time. The employer appealed against a decision to extend the time for him to file his complaint.
Held: A tribunal has a very wide discretion in the area of whether to extend . .
Cited – Sinclair Roche and Temperley and others v Heard and Another EAT 22-Jul-2004
EAT Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.
(i) ET must, if . .
Cited – J Kells v Pilkington Plc EAT 2-May-2002
EAT Equal Pay Act . .
Cited – Ruby v Kings Lynn and Wisbech Hospitals NHS Trust EAT 6-Jun-2001
. .
Cited – Chaudhary v The Senate of the Royal College of Surgeons Of Great Britain and Ireland and Others, NHS Executive Headquarters, Department of Health, NHS Executive North West, The Postgraduate Dean North West Deanery etc EAT 19-Jul-2001
EAT Race Discrimination – Direct . .
Cited – The Commissioner of Police of the Metropolis v Hendricks EAT 5-Nov-2001
EAT Jurisdiction – (no sub-topic). . .
Cited – G R Pommell v Birmingham City Council and Another EAT 17-Jan-2002
. .
Cited – Hendricks v The Commissioner of Police of the Metropolis CA 27-Nov-2002
The appellant appealed a finding of the Employment Appeal Tribunal against her. She had complained of sex and race discrimination. She alleged that the Tribunal had concentrated on the issues of policy within the respondent police force.
Held: . .
Cited – Commissioners of Inland Revenue and Cleave CB v Morgan EAT 6-Feb-2002
EAT Race Discrimination – Direct . .
Cited – Sommerville-Cotton v Barclays Capital Services Ltd EAT 25-Jan-2002
EAT Sex Discrimination – Direct . .
Cited – William Jack v Pinkerton Security Services Ltd EAT 7-Dec-2000
EAT Race Discrimination – Direct . .
Cited – Jack v Pinkerton Security Services Ltd CA 3-May-2001
Application for leave to appeal – refused. . .
Cited – Jack v Pinkerton Security Services Ltd EAT 16-Apr-2002
. .
Cited – MOD (Service Children’s Education) v KW EAT 9-Oct-2000
. .
Cited – Lee v Lancashire County Council EAT 1-Mar-2000
. .
Cited – C Pharoah v H M Prison Service EAT 20-Jun-2000
EAT Procedural Issues – Employment Tribunal . .
Cited – Arube v Devon Probation Service EAT 7-Nov-2000
. .
Cited – P Lee v Lancashire County Council EAT 30-Apr-2001
EAT Disability Discrimination – Disability . .
Cited – Farooqi v South Warwickshire NHS Trust EAT 1-Dec-1999
. .
Cited – Tyagi v BBC World Service EAT 3-Apr-2000
. .
Cited – Farooqi v South Warwickshire NHS Trust EAT 5-Apr-2000
. .
Cited – Dr Grace Awaekpo v St Mary’s NHS Trust and others CA 10-Aug-1999
. .
Cited – Court v Gloucester Royal NHS Trust and Another EAT 15-Jun-1999
. .
Cited – Ayobiojo v London Borough of Lewisham EAT 25-Jul-1995
. .
Cited – Cast v Croydon College EAT 9-May-1996
. .
Cited – Akhter v Family Services Unit EAT 20-May-1996
. .
Cited – Donovan v New Islington and Hackney Housing Association EAT 10-Mar-1997
. .
Cited – Mungal v Twickenham and Roehampton Healthcare NHS Trust EAT 11-Apr-1997
. .
Cited – Great Mills (Central) Ltd v Ahmed EAT 16-Apr-1997
. .
Cited – Manning v British Telecommunications Plc and others EAT 25-Apr-1997
. .
Cited – South Wales Police v Walters and others EAT 14-Nov-1997
. .
Cited – Mensah v Whittington Hospital NHS Trust and others EAT 19-Nov-1997
. .
Cited – Sheffield City Council v Wilson and Another EAT 11-Dec-1997
. .
Cited – Ewane v Department for Education and Employment EAT 19-Dec-1997
. .
Cited – Ayobiojo v Nalgo-Unison Trade Union EAT 16-Jan-1998
. .
Cited – South Wales Police v Walters and others EAT 27-Feb-1998
. .
Cited – Court v Gloucestershire Royal NHS Trust EAT 20-Jul-1998
. .
Cited – Khan v Nynex Cablecomms Ltd EAT 26-Oct-1998
. .
Cited – Henry v Foreign and Commonwealth Office EAT 1-Dec-1998
. .
Cited – Weigel and Another v Brown EAT 10-Dec-1998
. .
Cited – Wilson v Sheffield City Council EAT 15-Nov-2000
. .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Leading Case
Updated: 09 November 2021; Ref: scu.209014