Bayliss v London Borough Of Hounslow

For the purposes of statutory time limits, separate incidents do not constitute a continuing act merely because they arise from an earlier dispute or working environment. The tribunal must assess objectively whether the later conduct forms part of continuing discriminatory or victimising conduct.

Where earlier discriminatory incidents are out of time, a later incident must itself be capable of amounting to discrimination or victimisation and detriment. Non-racial words, following a clear break in continuity, may properly be treated as a distinct and separate act. An appellate court may interfere only for an error of law or a decision which no reasonable tribunal could reach.

Mrs Bayliss appealed against the Employment Appeal Tribunal’s dismissal of her appeal from an Employment Tribunal decision striking out her complaints of race discrimination and victimisation against the London Borough of Hounslow and a colleague.

The alleged discriminatory conduct mainly occurred before 8 August 1994. The only incident within the three-month period under section 68 of the Race Relations Act 1976 was a conversation on 19 August 1994. The Employment Tribunal held that the earlier incidents were not part of a continuing act and that the later conversation was incapable of constituting discrimination, victimisation or detriment. The central issues were whether the conduct extended over a period and whether the later conversation was legally capable of satisfying the statutory requirements.

The appeal was dismissed with costs. Permission to appeal to the House of Lords was refused.

1. Section 68 of the Race Relations Act 1976 required the complaints to be presented within three months of the act complained of, subject to the statutory provisions for acts extending over a period. The Employment Tribunal had directed itself correctly on the relevant statutory provisions and authorities.

2. The Tribunal was entitled to find that the earlier incidents did not continue into the relevant three-month period. On Mrs Bayliss’s own account there had been a two-month break in the continuity of the earlier racist speech after the meeting on 17 June 1994. The questions asked on 19 August were neither racial in terms nor racial in substance. They could therefore be treated as a distinct and separate act rather than part of a continuing act.

3. The Tribunal was also entitled to conclude that the 19 August conversation was not capable of being an act of racial discrimination subjecting Mrs Bayliss to detriment. Detriment means putting a person at a disadvantage and is assessed objectively, including from the viewpoint of the reasonable worker. The Tribunal was entitled to consider the clear break in continuity, the absence of racial language or content, and the circumstances of the conversation.

4. Similar considerations justified rejecting the victimisation complaint. Although the questions arose from Mrs Bayliss’s earlier complaints, the Tribunal was entitled to find that she had not been treated less favourably than other persons would have been treated in the circumstances.

5. The fact that another tribunal or the Court of Appeal might have reached a different conclusion did not make the decision perverse or irrational. The appellate jurisdiction was confined to questions of law, and no error of law had been shown.

• Court of Appeal (Civil Division): The appeal from the Employment Appeal Tribunal was dismissed with costs. Permission to appeal to the House of Lords was refused: [2002] EWCA Civ 354.
• Employment Appeal Tribunal: Appeal from the Employment Tribunal was dismissed on 12 December 2000; permission to appeal was refused.
• Employment Tribunal: The complaints of race discrimination and victimisation were struck out as out of time, and an extension of time was refused.