Appeal No. EAT/586/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 11th July 1991
	Judgment Delivered 31 July 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MISS J W COLLERSON

	Ms P SMITH

MRS M SOUGRIN	APPELLANT

HARINGEY HEALTH AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr R Allen
	(of Counsel)
	Messrs O H Parsons & 	Partners
	Solicitors
	4th Floor, Sovereign House
	212-224 Shaftesbury Avenue
	LONDON WC2H 8PR

For the Respondents	Mr M Griffiths
	(of Counsel)
	Messrs Beachcroft Stanleys
	Solicitors
	20 Furnival Street
	LONDON EC4A 1BN

MR JUSTICE WOOD (PRESIDENT)    By an Originating Application dated 30th April 1990 Mrs Sougrin claimed "Unfair grading" on the grounds of race.  This is an allegation of direct discrimination under the Race Relations Act 1976.   Paragraph 9 of the Originating Application form reads, "If your complaint is not about dismissal, please give the date when the action you are complaining about took place (or the date when you first knew about it)".  Her answer to this was "13th November 1989".

	Section 68(1) of that Act reads, 
	"An industrial tribunal shall not consider a complaint under S.54 unless it is presented to the tribunal before the end of the period of 3 months beginning when the act complained of was done."
Under sub-paragraph (6)
	"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers it is just and equitable to do so."

	On the face of the documentation therefore it would appear that Mrs Sougrin's application was out of time unless an Industrial Tribunal exercises discretion to grant an extension.

	This issue of jurisdiction was heard by an Industrial Tribunal sitting in London (North) on 27th September 1990 under the Chairmanship of Mrs F Stoll.  It decided first, that the Originating Application was out of time and secondly, that in its discretion it would not grant an extension.  Mrs Sougrin appeals.  Both sides were represented by counsel before the Industrial Tribunal and before us.

	Mrs Sougrin is Black.  She is a Staff Nurse and states that there were 4 staff nurses relevant for her case.  Of the other 3, one, Miss Mobey was white and the other two including a Mrs McDonald were black.  Mrs McDonald has also brought proceedings under the 1976 Act; those proceedings were brought in time.

	With effect from 1st April 1988 there has been a massive regrading of staff, including nursing staff, within the National Health Service.  Initially this takes place at local level, but thereafter there is a right of appeal to the Local Health Authority (the Local Appeal), and then finally to the Regional Health Authority (the Regional Appeal).

	Mrs Sougrin is supported by her Trade Union and there is before us a most detailed and itemised declaration of the criteria to be applied in assessing and granting grades.  These criteria are agreed and the relevant date of assessment is 1st April 1988.  Any regrading as a result of a successful appeal means that there is a backdating of pay and standing.

	At the initial local review in October 1988, Mrs Sougrin and Miss Mobey were both graded 'E', as was Mrs McDonald.  All appealed.  Because there was such a vast volume of appeals the Local Health Authority were advised by the Department to make a quick review of all such appeals and if there were any truly obvious cases where the appeal would be allowed, to decide those cases without the necessity of the formal appeal procedure.  In carrying out this function the Local Health Authority regraded Miss Mobey to grade 'F'.  Subsequently Mrs Sougrin's Local Appeal was heard and it was on 13th November that that appeal was dismissed.

	She has since appealed to the Regional Health Authority.  Although it could be some considerable time before this could be heard, we were informed by counsel that it was likely to be heard "at any moment".  That would be the final appeal.

	It is common ground between the parties that on the initial review, the Local Appeal and the Regional Appeal the only real issue is whether or not an appellant fits into the agreed criteria of a grade.  Although not strictly relevant, comparability is likely to be raised by the Trade Union at the Regional Appeal in order to argue consistency of approach.

	The reasoning of this Industrial Tribunal is succinctly contained in paragraph 4 of its decision which starts by reference to the submission being made by Mr Robin Allen for the Applicant,
	"4   In support of his argument he referred us to Barclays Bank v. Kapur & Others [1989] IRLR 387.  He likened the pension entitlement in that case to the loss of wages in the instant case.  Mr Griffiths, referred us in the same case, to the distinction made by Lord Justice Mann between an act, 'extending over a period' and an act which does not extend over a period but which has consequences over a period.  We were referred as well to Calder v. James Finlay Corporation [1989] IRLR 55, Amies v. Inner London Education Authority [1977] ICR 308.  We prefer Mr Griffiths' argument.  We find that the discriminatory act complained of was the decision to dismiss the appeal.  This was not a continuing act but its consequence was that the Applicant was paid wages at Grade E, some £2,000 a year less than Grade F."

	The KAPUR case has now been heard by the House of Lords and is reported at [1991] ICR 208.  The appeal by the Bank failed.

	Before this Court Mr Allen presents his case thus - first, the claim by the Applicant is in reality an Equal Pay claim; she alleges that she has been paid less than Miss Mobey on the grounds of race; the reason why she was paid less was because she had not been graded 'F' on the Local Appeal, but that the Industrial Tribunal had erred in distinguishing between the decision not to change the grade  - namely how the disparity arose - with the continuing detriment of being paid less than Miss Mobey.  It was the failure to pay Mrs Sougrin the same as Miss Mobey which was the "continuing act" within S.68(7)(b) "any act extending over a period shall be treated as done at the end of that period".

	As a subsidiary argument he submitted that Mrs Sougrin's lower pay was a term of her contract of employment which was less favourable than that of Miss Mobey and that it was so on the ground of race.

	It became clear during submissions that in order to establish her case Mrs Sougrin would have to bring herself within the grade 'F' criteria, in which case she would then compare herself with Miss Mobey who was already graded 'F'; if however there were valid differences between their cases then the Applicant's case would fail.

	In support of his subsidiary submission on the terms of contract of employment, Mr Allen relied in particular upon two passages from the speech of Lord Griffiths in the House of Lords in KAPUR.  The first is at p.213C where he says,

"However, let us suppose that after the act was in force a coloured man was employed  under a contract which gave him a pension of one-eightieth of salary for each year of service and his white comparator's contract gave him a pension of one-sixtieth of salary for each year of service.  The inclusion of the term as to a pension being less favourable on racial grounds would render the making of the contract unlawful and that act would be treated as extension throughout the duration of the contract. ...

     	The second passage upon which he relies is at p.215B where he says -

	"...The matter can be further tested by taking the case of an employer who before the Act was passed paid lower wages to his coloured than to his white employees.  Once the Act came into force the employer would be guilty of racial discrimination if he did not pay the same wage to both coloured and white employees.  If he continued to pay lower wages to the coloured employees it would be a continuing act lasting throughout the period of a coloured employee's employment within the meaning of subsection (7)(b).  A man works not only for his current wage but also for his pension and to require him to work on less favourable terms as to pension is as much a continuing act as to require him to work for lower current wages."

	It seems to us, as Mr Griffiths pointed out, that the term of the contract of employment was that Mrs Sougrin would be paid according to her grade and that there was nothing, nor is it suggested that there was anything, discriminatory in the criteria for a grade.  There is no provision which is discriminatory as there was in the pension provision in KAPUR.

	We therefore turn to the main submission that in continuing to pay Mrs Sougrin less than Miss Mobey there was a "continuing act" of discrimination.  

	The notion of a "continuing act" has not proved an easy one either for this Court or for Tribunals at first instance, but in the light of the decision of the House of Lords in KAPUR we hope that the following approach may be helpful.

	Their Lordships expressed approval - as had the Court of Appeal - with two earlier decisions as showing the difference between a "one off decision or act" and "a continuing act".

	The first of those decisions was AMIES v. INNER LONDON EDUCATION AUTHORITY [1977] ICR 308, in which case a female art teacher applied for the post as head of her department at the school at which she taught.  A man was appointed instead.  On a date outside the three month limit she made a complaint to an Industrial Tribunal that by appointing a man the employers had discriminated against her under the provisions of the Sex Discrimination Act 1975.  The Industrial Tribunal held that they had no jurisdiction to hear her complaint as the act of discrimination namely the failure to appoint her to the post had occurred before the Act came into force.  That decision was upheld by this Court.  In giving the decision of the Court Mr Justice Bristow included this important passage at p.311,
	"... 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 when 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."   (Our emphasis)

	The second case was CALDER v. JAMES FINLAY CORPORATION LTD (NOTE)  [1989] ICR 157.   In that case the company operated a scheme whereby they granted a mortgage subsidy to male employees over the age of 25.  After attaining the age of 25 Miss Calder applied for a mortgage and was refused.  She subsequently left her employment and within three months of the termination of that employment she complained to an Industrial Tribunal of sex discrimination.  That Industrial Tribunal found in favour of the employers but this Court allowed an appeal by Miss Calder.  In giving the judgment of this Court Mr Justice Browne-Wilkinson said,
	"By constituting a scheme under the rules by which a female could not obtain the benefit of the mortgage subsidy in our judgment the employers were discriminating against the applicant in the way they afforded her access to the scheme.  It follows, in our judgment, that so long as the applicant remained in the employment of these employers there was a continuing discrimination against her. ... The rule of the scheme constituted a discriminatory act extending over the period of her employment and is therefore to be treated as one having been done at the end of her employment."  (Our emphasis)

	Thus, "a continuing act" should be approached as being a rule or regulatory scheme which during its currency continues to have a discriminatory effect on the grounds of sex or race.

	Applying these principles to the present case we agree with this Industrial Tribunal that it falls on the AMIES rather than the CALDER side of the line, in that the "rule" if it can be considered such is that the Applicant is paid according to her grade and that her complaint is that on 13th November 1989 she was not upgraded to Grade 'F'.  The fact that she continues to be paid less than Miss Mobey is a consequence of the decision on appeal and is not of itself a continuing act of discrimination.

	The second point raised on this appeal concerns the exercise of the discretion by the Industrial Tribunal.  Their reasoning is contained in paragraphs 5 and 6 of the Decision which read -
	"5.   Having decided that the application was out of time we considered whether it would be just and equitable to extend the time limit in the circumstances of this case.  Mr Allen's forceful argument, among other things was that the Respondent would have to deal with a similar case being brought by the Applicant's colleague, Mrs McDonald at which she would be called to give evidence; it would not involve them in extra expense and that the Respondent would suffer no injustice.

	 6.   We were referred to Hutchison v. Westward Television Ltd.  The Tribunal considered that the Applicant had been represented throughout by her trade union representative.  She had access to the equal opportunities officer.  She had known since 30 January 1990 that Mrs McDonald had lost her appeal against her grading."

	We were told by Mr Griffiths that there had been an oral decision and that the written decision followed later.  In order fully to understand what is there said, he informed us that in addressing the Tribunal Mr Allen had explained that Mrs Sougrin had throughout been acting under the advice of her trade union; that their advice had been to await the hearing of Mrs McDonald's appeal before proceeding to the Regional Appeal and that due to being adjourned it was not until the 30th January 1990 that Mrs McDonald's Local Appeal failed.  Mrs Sougrin had approached the equal opportunities officer on 13th February 1990.

	It was to these aspects of the case that the Tribunal were referring in its Decision.  The case of HUTCHISON is reported [1977] ICR 279 and the Tribunal were no doubt directing themselves in accordance with the well known passage on p.282B-C from the judgment of the Court delivered by Mr Justice Phillips where the Court say -
	"The second matter to which we would draw attention is that this is a new, or relatively new, statute.  The formula provided by section 76(5) by which an application to extend time has to be judged is a new one, and it very sensibly gives the industrial tribunal a wide discretion to do what it thinks is just and equitable in the circumstances.  Those are very wide words.  They entitle the industrial tribunal to take into account anything which it judges to be relevant.  We doubt whether industrial tribunals will get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes.  We do not go so far as to say that they are always and in all circumstances irrelevant, but we would deprecate these very simple, wide words becoming encrusted by the barnacles of authority.  The industrial tribunal is to do what it thinks is fair in the circumstances."

	The criticism made by Mr Allen on this aspect of his appeal is that the Industrial Tribunal concentrated over much on the question of advice and representation.  It may be that not every facet of the reasoning is set out but this was an extremely experienced Chairman who with the assistance of industrial members looked at this whole matter and we cannot accept that there is any ground for criticising the exercise of the discretion in the present case.

	It follows therefore that this appeal must be dismissed.  However, these cases of continuing acts are of general interest to the exercise of this jurisdiction and we grant leave to appeal.