Jack v Pinkerton Security Services Ltd

Earlier acts of racial discrimination fall within the statutory time limit as part of a continuing act only where the evidence supports a continuing regime, rule, practice or policy of discrimination operated by the respondent. A tribunal’s conclusion on that issue is factual and evaluative. It may be disturbed on appeal only if perverse. Findings that an employer would have dismissed any employee in the same circumstances, and that delay in investigating a grievance resulted from organisational turmoil rather than racial grounds or victimisation, were findings open to the tribunal. The application for permission to appeal was dismissed.

William M Jack, a black security officer, brought complaints of race discrimination, victimisation and wrongful dismissal against Pinkerton Security Services Ltd. The Employment Tribunal dismissed the substantive complaints and held that the earlier complaints concerning various work sites were out of time because there was no continuing discriminatory regime, rule, practice or policy.

The Employment Appeal Tribunal dismissed Mr Jack’s appeal on 13 September 2000. It held that the Employment Tribunal had applied the correct legal test and that its factual findings were not perverse. Mr Jack applied to the Court of Appeal for permission to appeal, challenging the limitation conclusion, the findings concerning his dismissal and grievance, and the handling of the tribunal hearing. The central issue was whether any appeal had a real prospect of success.

Application dismissed; no order for costs.

1. The Race Relations Act 1976 imposed a three-month period beginning when the act complained of was done. Earlier complaints could be brought within time as part of a continuing act only if the evidence disclosed a continuing regime, rule, practice or policy of discrimination operated by the respondent.
2. Lord Justice Mummery held that both tribunals had applied the correct legal test, including the principles reflected in the leading authorities and Owusu v London Fire and Civil Defence Authority [1995] IRLR 574. The Employment Tribunal was entitled to conclude that the evidence did not disclose such a regime. The events at Kensington and Acton could reasonably be understood as arising from client requirements, and the respondent’s manager at Acton had initially resisted the relevant change.
3. Whether the evidence established a continuing discriminatory policy was a matter of factual evaluation. The Employment Tribunal had heard the witnesses and considered the documents. A different interpretation of the evidence, or fresh evidence used to re-argue the case, did not show perversity.
4. The finding that the respondent would have dismissed any employee in the same circumstances, regardless of race, was a factual finding open to the tribunal. The treatment of Mr Malik did not make the cases comparable. The finding that the delay in investigating the grievance was caused by turmoil within the company, including senior management departures, and was not racially motivated or intended to victimise Mr Jack, was likewise not perverse.
5. The challenges to the earlier site incidents could not provide a sound basis for appeal because the complaints were out of time. The Employment Appeal Tribunal had also properly addressed the allegations concerning late disclosure and questionnaire responses. No adjournment had been sought to deal with any unexpected disadvantage, and no error of law was shown. There was no real prospect of success on any ground.

1. Court of Appeal (Civil Division): the application for permission to appeal was dismissed; no order for costs.
2. Employment Appeal Tribunal: on 13 September 2000, dismissed the appeal from the Employment Tribunal.
3. Employment Tribunal: on 26 February 1999, rejected the complaints of race discrimination, victimisation and wrongful dismissal, and held the earlier complaints out of time.