Henry v London Borough of Newham

For the statutory time limit, the issue under the Race Relations Act 1976, section 68(7)(b), is whether the substance of the allegations shows one continuing discriminatory act or state of affairs, rather than a succession of isolated acts. A policy, rule, practice, scheme, regime or institutional culture may assist, but none is required. Tribunals must examine the specific incidents and their links in a common-sense way. Mere historical or causal connection is insufficient. Where the tribunal has made clear findings on each allegation and is entitled to conclude that no continuing discriminatory state of affairs existed, the limitation ruling should stand. An appellate court should also respect findings supported by the evidence and will not remit a case for an immaterial factual uncertainty.

Keith Henry, a part-time library assistant, brought complaints of racial discrimination against the London Borough of Newham arising from monitoring, the handling of complaints, directions concerning occupational health attendance and correspondence, disciplinary proceedings, and pay arrangements. The Employment Tribunal at Stratford dismissed the complaints, treating some as out of time. The Employment Appeal Tribunal dismissed his appeal on 29 July 2003. Before the Court of Appeal, the principal issues were whether the allegations formed an act extending over a period under section 68(7)(b) of the Race Relations Act 1976, whether the tribunal had failed to address a complaint about the chief executive, and whether its findings on monitoring were legally unsustainable.

1. Disposition. Pill LJ gave the leading judgment and dismissed the appeal. Latham LJ agreed, adding that the complaint concerning Mr Burbage could not establish even the beginnings of discrimination. Eady J agreed with both judgments.
2. Continuing act. The correct inquiry under section 68(7)(b) of the Race Relations Act 1976 is whether the substance of the complaints and the evidence show linked incidents forming a continuing discriminatory state of affairs, rather than separate isolated acts. As explained in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, policy, rule, practice, scheme and regime are examples only. They are not required categories or an exhaustive test.
3. The Employment Tribunal had examined the individual incidents and made firm findings on them. The incidents were historically or causally connected, but there was no evidence of discriminatory linkage or a continuing discriminatory state of affairs. The Tribunal was therefore entitled to treat them as separate acts and to apply the limitation provisions.
4. Chief executive’s response. The complaint concerning Mr Burbage was not included in the originating application. The Tribunal’s treatment of it did not disclose an error of law. Its implied rejection was clear from the findings as a whole, and Mr Burbage had reasonably directed the claimant to the Council’s grievance procedure.
5. Monitoring. The Tribunal was entitled, on the evidence, to find that monitoring had not continued continuously from 1997 to 2000 and had ended in practice by September 2000. Ambiguous attendance notes did not make those findings legally unsustainable. Even if the point had merit, it could not justify remittal in light of the Tribunal’s careful and comprehensive rejection of racial discrimination.
6. The respondent was awarded costs, subject to the stated cut-off and to the costs judge determining any contribution in relation to the later period.

• Court of Appeal (Civil Division). On 5 March 2004, the court dismissed the appeal from the Employment Appeal Tribunal and made costs orders.
• Employment Appeal Tribunal. On 29 July 2003, the tribunal dismissed the appeal from the Employment Tribunal.
• Employment Tribunal, Stratford. On 28 August 2002, the tribunal dismissed the claimant’s complaints of racial discrimination.