Ruhaza v Alexander Hancock Recruitment Ltd

Race-discrimination claims concerning separate recruitment advertisements are ordinarily separate acts, so time runs from each act unless the evidence establishes a continuing discriminatory state of affairs affecting the claimant.

An alleged general policy is not, without more, an actionable individual claim where the claimant was not employed or registered and the policy was not applied to him. Complaints about discriminatory practices or advertisements may fall within Race Relations Act 1976, sections 28 and 29, for which proceedings are brought only by the Commission for Racial Equality.

A tribunal’s imperfect formulation of direct and indirect discrimination does not require remission where the claims are plainly out of time, no extension is sought, and the result could not differ.

The claimant appealed from an Employment Tribunal decision dismissing his direct and indirect race-discrimination claims against an employment agency. The claims concerned recruitment advertisements in February 2007 and November 2007, including an alleged preference for local residents and a preference for a British national.

The Employment Tribunal held that the claims were out of time and that the claimant had not sought an extension on the just and equitable ground. Earlier procedural decisions had restricted the appeal to the continuing-act issue and the formulation of the direct and indirect discrimination claims. The central questions were whether the alleged acts formed part of a continuing act, whether the tribunal had misdirected itself on the discrimination definitions, and whether the claims were within time.

1. Appeal dismissed. The Employment Tribunal correctly concluded that it had no jurisdiction because both claims were presented out of time and the claimant expressly declined to seek an extension under section 68(6) of the Race Relations Act 1976.
2. The Employment Tribunal should have dealt expressly with the continuing-act argument. Such an argument need not be pleaded in those precise words if the pleaded facts and evidence support an act extending over a period.
3. On the facts, however, there was no continuing act. The February advertisements concerned an alleged residence criterion, while the November advertisement concerned nationality. They were discrete events and did not evidence a single continuing discriminatory state of affairs affecting the claimant. He had not completed registration with the agency, and the agency was under no obligation to offer him employment.
4. The approach in Hendricks v Commissioner of Police for the Metropolis was applied. The focus is on the substance of the complaint and whether there was an ongoing situation affecting the claimant, rather than on whether a formal policy, rule or scheme can be identified.
5. The indirect-discrimination claim was, in substance, a complaint about an alleged general policy. Applying Tyagi v BBC World Service, the claim could not be maintained as an individual complaint in these circumstances. Complaints about discriminatory practices could be brought only by the Commission for Racial Equality under section 28, and complaints about discriminatory advertisements only under section 29.
6. The tribunal’s description of direct discrimination was unsatisfactory and more closely resembled indirect discrimination. Nevertheless, the error was immaterial. On the tribunal’s factual findings, either characterisation left the claims out of time, and remission would serve no useful purpose.
7. Remission is a last resort. The Tribunal was in as good a position to determine the time issue, and further procedural “ping pong” would prolong the litigation and increase costs.

• Court of Appeal: On 9 June 2010 the appeal was allowed in part and remitted to the Employment Appeal Tribunal. The Court of Appeal considered the bias allegations unsustainable but regarded the direct- and indirect-discrimination grounds as potentially arguable.
• Employment Appeal Tribunal: The appeal was dismissed. The Employment Tribunal’s decision was upheld because the claims were out of time and no extension was sought.