Bexley Community Centre v (t/a Leisure Link)

A continuing act of discrimination requires evidence of an employer’s practice, policy, rule or regime governing the conduct alleged. A later discriminatory incident occurring after presentation of the complaint cannot establish that the earlier complaint was in time, although it may be relevant to whether an extension is just and equitable.

Under section 68(6) of the Race Relations Act 1976, extension of time is exceptional. The claimant must satisfy the tribunal that it is just and equitable. The Employment Appeal Tribunal may interfere with that discretionary decision only for an error of law or principle, or because it was plainly wrong; it may not substitute its own view.

The respondent, a probationary plant technician of black Caribbean origin, complained of racially discriminatory conduct by a colleague and of his employer’s response. He later complained of an investigation, an extension of probation and a temporary relocation. His originating application was presented before a further racially abusive incident at a planned reconciliation meeting.

The Employment Tribunal rejected the latter complaints on their merits. It held that the earlier racial conduct was outside the three-month period in section 68(1) of the Race Relations Act 1976, was not part of a continuing act, and should not be considered out of time under section 68(6). The Employment Appeal Tribunal quashed that decision and remitted the claim. The employer appealed.

1. Appeal allowed unanimously. Lord Justice Auld gave the reasons, with which Lord Justice Chadwick and Mr Justice Newman agreed. The Employment Appeal Tribunal had exceeded its appellate role by substituting its own assessment for that of the Employment Tribunal.

2. The complaint founded on the colleague’s conduct in early 1999 was out of time. The later incident at the reconciliation meeting occurred after presentation of the originating application and could not be used to determine whether the complaint as presented disclosed a continuing act or was within time.

3. A continuing act required evidence of an employer’s practice, policy, rule or regime governing the impugned conduct. Following Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, an employee’s unchanged discriminatory attitude did not suffice. There was no evidence that the employer had acquiesced in or condoned the colleague’s behaviour.

4. The subsequent incident might have been relevant to the distinct question whether it was just and equitable to extend time under section 68(6) of the Race Relations Act 1976. But the Employment Tribunal had a wide discretion over that question. Time limits are applied strictly, and there is no presumption that time should be extended. The claimant bears the burden of showing that an extension is just and equitable.

5. The Employment Tribunal had considered the relevant circumstances and reached a reasoned decision. It was entitled to take account of the claimant’s prompt access to advice, his request for restraint in the disciplinary response, and the employer’s reasonable steps. Its decision was neither erroneous in principle nor plainly wrong. The Employment Appeal Tribunal therefore had no jurisdiction to overturn it.

• Court of Appeal (Civil Division) — allowed the employer’s appeal: [2003] EWCA Civ 576.
• Employment Appeal Tribunal — quashed the Employment Tribunal’s decision, dismissed the racial-discrimination complaint as out of time, held that no just and equitable extension should be granted, and remitted the claim to a differently constituted tribunal.
• Employment Tribunal — dismissed the complaint founded on the colleague’s earlier conduct as out of time and declined to extend time; rejected the remaining complaints on their merits.