MA v Merck Sharp & Dohme Ltd

For time-limit purposes under the Race Relations Act 1976, it is insufficient merely to assert that discriminatory acts form a continuing act or an ongoing state of affairs. The complainant must have a reasonably arguable basis for showing that the complaints are linked. Whether acts are connected or isolated is fact-sensitive. Where the significance of a workplace transfer and the alleged continuity cannot fairly be resolved on limited material, the tribunal may adjourn the time-limit issue to the merits hearing. A claimant’s forensic categorisation of allegations does not prevent reliance on the substantive case that discrimination continued throughout employment. A complaint confined to exclusion from project groups existing in 1999 and 2000 was out of time.

Dr Qing-Ping Ma brought a race-discrimination complaint against Merck Sharp & Dohme Limited after employment lasting from 1997 to 2005. The Employment Tribunal held some complaints in time but ruled that complaints concerning earlier promotion, salary, appraisals, exclusion from Project Core Groups and alleged lack of interpersonal skills were out of time. The Employment Appeal Tribunal, in UKEAT/0487/07/LA, dismissed his appeal.

The central issues were whether the complaints formed a continuing act or a succession of isolated acts, and whether Dr Ma’s transfer to Robotics in August 2002 broke the alleged continuity. The Court of Appeal also considered whether the remaining time-limit issues could properly be determined before the full evidence was heard.

The Court of Appeal, in the judgment of Mummery LJ with which Sedley and Rix LJJ agreed, allowed the appeal to the extent of varying the Employment Tribunal’s order.

1. Under the Race Relations Act 1976, the statutory time-limit issue depended on whether the alleged acts extended over a period or were isolated acts. The court did not repeat the general guidance in Commissioner for the Police for the Metropolis v. Hendricks [2003] ICR 530. It agreed that a bare assertion of continuing discrimination or an ongoing state of affairs was insufficient. A complainant required a reasonably arguable basis for contending that the complaints were linked.
2. Whether alleged acts were connected was fact-sensitive. The significance of the transfer to Robotics, including the identity of managers, the work undertaken and the departmental structure, could not fairly be resolved on the limited evidence available at the preliminary stage. The issue should therefore be determined at the substantive hearing with the benefit of the evidence. The Court of Appeal should not be hyper-critical or over-analytical of tribunal decisions closely connected with practical case management, but a question of law arose where complaints and evidence had been excluded on time-limit grounds.
3. The Employment Tribunal and Employment Appeal Tribunal had placed undue weight on Dr Ma’s three categories of complaint. Those categories were not exclusive or self-contained. His originating application made it permissible for him to argue that, subject to the evidence, the complaints formed part of continuing discrimination throughout his employment.
4. The complaint concerning exclusion from Project Core Groups was different. Since the complaint related to groups existing in 1999 and 2000, it could not be treated as an act extending over a period so as to be in time.
5. Except for that complaint, the remaining time-limit issues were adjourned to the substantive hearing. If those complaints were ultimately out of time, Dr Ma would have no rights in respect of them, although they could retain evidential value when determining whether other acts were in time and discriminatory.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 1426, allowed the appeal to the extent of varying the Employment Tribunal’s order. Issue 7 remained out of time, while the remaining time-limit issues were adjourned to the substantive hearing.
• Employment Appeal Tribunal: In UKEAT/0487/07/LA, Cox J dismissed Dr Ma’s appeal from the Employment Tribunal’s ruling.
• Employment Tribunal: In a judgment promulgated on 24 July 2007, Ms Jones held that eight complaints could proceed but that issues 2, 3 and 9 taken together, 4, 7 and 12 were out of time.
• Employment Appeal Tribunal: On 6 February 2007, Keith J allowed an earlier appeal and remitted the out-of-time complaints for reconsideration.
• Employment Tribunal: Following a May 2006 pre-hearing review, Judge Glennie held complaints relating to events before 22 May 2005 out of time and refused an extension of time on just-and-equitable grounds.