Okoro & Anor v Taylor Woodrow Construction Ltd & Ors

Whether an act is one extending over a period under section 68(7)(b) of the Race Relations Act 1976 is a question of fact for the Employment Tribunal. The tribunal must examine the substance of the complaint and decide whether it concerns a continuing state of affairs or a specific act, or sequence of acts, completed at a particular time. A policy or rule may be relevant, but it is not an exhaustive requirement and may concern an individual rather than the workforce generally. Continuing consequences do not necessarily create a continuing act. An appeal succeeds only for an error of law or a perverse conclusion.

Two contract workers brought racial-discrimination complaints against Taylor Woodrow Construction Ltd and others under section 7 of the Race Relations Act 1976. They alleged that they had been refused work and banned from Taylor Woodrow sites. The final refusal occurred on 18 April 2008, but the claims were presented on 6 August 2008.

The Employment Tribunal held that the ban was a one-off decision with continuing consequences, rather than an act extending over a period, and that the claims were out of time. It also declined to extend time on the just and equitable ground. The central issue before the Employment Appeal Tribunal was whether the Tribunal had erred in treating the alleged discrimination as completed by 18 April 2008.

1. Appeals dismissed. The appeal against the jurisdiction decision failed. The solicitor’s appeal against the wasted-costs order was also dismissed.

2. Under section 68(7)(b) of the Race Relations Act 1976, whether an act extends over a period is a question of fact for the Employment Tribunal. The Employment Appeal Tribunal may interfere only for a misdirection in law or perversity.

3. The correct approach is to examine the substance of the complaint. The Tribunal should ask whether the complaint concerns a continuing state of affairs, such as a continuing policy, rule, regime or series of acts, or instead concerns specific events which were completed at a particular time. The examples of policy, rule, practice, scheme or regime are useful but are not exhaustive.

4. The fact that an alleged policy is applied to an individual does not necessarily make the act one-off. Conversely, the fact that a decision has continuing consequences does not necessarily make it an act extending over a period. The nature of the alleged consequences may be relevant, particularly where they are of the same character as the original refusal.

5. On the pleadings, the complaints focused on the conduct of one employee and a short sequence of events on 6, 7, 8 and 18 April 2008. The later refusals referred back to the original banning decision. The Employment Tribunal was entitled to find that the complaint concerned a completed sequence of individual acts, not a continuing discriminatory policy or state of affairs. Its conclusion was neither legally misdirected nor perverse.

6. The Tribunal’s refusal to extend time on the just and equitable basis was not appealed.

• Employment Appeal Tribunal: appeals from decisions of the Watford Employment Tribunal were dismissed. The Tribunal’s finding that the discrimination claims were out of time was upheld, as was the wasted-costs order against the former solicitor.
• Watford Employment Tribunal: held that the banning decision was a one-off act with continuing consequences, with the last relevant act occurring on 18 April 2008. The claims were therefore outside the primary limitation period.