Aziz v First Division Association (FDA)

For time-bar purposes under Race Relations Act 1976, separate discriminatory incidents form an act extending over a period only where they are linked as part of a continuing discriminatory state of affairs. Whether the same or different individuals were involved is relevant but not conclusive. At a pre-hearing review, the claimant need only show a prima facie, reasonably arguable basis for treating complaints as continuing. An arguable case should proceed to a full hearing. Distinct and disconnected periods cannot be joined merely because they concern the same respondent or alleged pattern. General allegations against an organisation cannot revive particulars that are already time-barred, although a surviving allegation may rely on the organisation’s responsibility and relevant comparator treatment.

Ms Halima Aziz brought racial discrimination claims against the First Division Association in the London South Employment Tribunal. She alleged failures to assist or represent her and more favourable treatment of white union members.

At a pre-hearing review, the employment judge held that most allegations were out of time. Allegation D18 could proceed because it arguably concerned a continuing act. The judge rejected an extension of time under section 68(6) of the Race Relations Act 1976. The Employment Appeal Tribunal, in judgments dated 16 July 2008 and 7 January 2009, dismissed Ms Aziz’s appeal. The Court of Appeal granted permission on ground 2 and referred renewed applications on grounds 1 and 3 to the full court. The central issues were whether the allegations constituted continuing acts or omissions under section 68(7)(b), and whether allegations E19 and E20 added an independent claim.

1. Disposition. Lord Justice Jackson delivered the principal judgment. Lord Justice Dyson and Lord Justice Richards agreed. The appeal was dismissed, and renewed applications for permission on grounds 1 and 3 were refused.
2. For the purposes of section 68(7)(b) of the Race Relations Act 1976, the tribunal must focus on the substance of the complaint. It must distinguish an ongoing discriminatory situation or continuing state of affairs from a succession of unconnected or isolated acts. Whether the same or different individuals were involved is relevant, but it is not conclusive. This approach was drawn from Commissioner of Police of the Metropolis v Hendricks [2002] EWCA Civ 1686 and British Medical Association v Chaudhary UKEAT/1351/01/DA & UKEAT/0804/02DA.
3. At a pre-hearing review, the claimant need only establish a prima facie or reasonably arguable basis for saying that the complaints are linked as continuing acts or an ongoing state of affairs. An arguable claim should not be barred before the full hearing. The court applied the approach in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 and Ma v Merck Sharpe and Dohme Ltd [2008] EWCA Civ 1426.
4. Ms Aziz’s dealings with FDA fell into distinct periods. Period 1 concerned the liability stage of the Leeds proceedings and ended when those proceedings concluded in June 2004. Period 2 was a discrete request for advice in July 2005 and could not extend beyond 31 July 2006. The matters between July and December 2006 might possibly have been continuing, but allegation C17 was separate from D18. Allegation D18, concerning the delay in providing representation from late December 2006 to July 2007, had an arguable basis as a continuing act or omission and was rightly allowed to proceed. The earlier allegations were time-barred.
5. The continuing-omission reasoning in Kingston Upon Hull City Council v Matuszowicz [2009] EWCA Civ 22 was of only limited assistance because the disability and racial-discrimination statutory schemes differed. Allegations E19 and E20 merely restated the underlying allegations against FDA’s officials. They could not revive the time-barred allegations. Ms Aziz’s case was confined to D18, although she could contend that FDA caused or permitted the conduct alleged there and contrast its treatment of her with its treatment of white members.

1. Court of Appeal (Civil Division): dismissed the appeal and refused renewed permission on grounds 1A(v) and 1B(iv), in [2010] EWCA Civ 304.
2. Employment Appeal Tribunal: HHJ McMullen QC dismissed Ms Aziz’s appeal in judgments dated 16 July 2008 and 7 January 2009.
3. Employment Tribunal: at a pre-hearing review, held most allegations time-barred, allowed allegation D18 to proceed as potentially continuous, and declined to extend time under section 68(6) of the Race Relations Act 1976.