Okoro & Anor v Taylor Woodrow Construction Ltd & Ors

For limitation purposes, the tribunal must identify the substance of the act complained of. A principal’s ban on contract workers is a one-off act, analogous to dismissal, where it terminates the parties’ relationship. Its continuing consequences do not make it an act extending over a period.

A continuing act requires an ongoing situation or state of affairs. In the absence of a continuing relationship, a ban does not remain actionable merely because it remains in force. A later statement that merely reiterates the ban, without reconsidering it, does not create a fresh act or restart time.

The appellants were agency-supplied contract workers on a construction site. Following an incident in April 2008, the principal contractor banned them from that site and its other Docklands Light Railway projects. They alleged that the ban was racially motivated.

They presented claims under Race Relations Act 1976 more than three months after the ban and its later reiteration. The Employment Tribunal held that the ban was a one-off decision with continuing consequences, and that the claims were out of time. It also refused a just and equitable extension. The Employment Appeal Tribunal dismissed their appeals.

The central issue was whether the ban was an act extending over a period for limitation purposes.

Decision

1. Appeal dismissed unanimously. The act complained of under section 68(1) of the Race Relations Act 1976 was the site ban imposed by the principal on the appellants as contract workers.
2. The ban was a one-off act. In substance, it was analogous to an employer dismissing an employee because it terminated the relationship between the principal and the contract workers. The fact that the exclusion remained effective was a continuing consequence, not a continuing discriminatory act.
3. Acts extending over a period may arise from an ongoing discriminatory regime or state of affairs. However, the continuing acts in Barclays Bank Plc v Kapur [1991] ICR 208 and Calder v James Finlay Corporation Ltd [1989] ICR 157 continued only while employment continued. The same absence of an ongoing relationship was material in Tyagi v BBC World Service [2001] IRLR 465.
4. The statements on 8 and 18 April 2008 merely reiterated a ban already imposed. There was no reconsideration of it. Time therefore ran from the imposition of the ban, and at the latest from 18 April 2008. A complaint challenging that ban had to be presented within three months, subject to the just and equitable extension, which was not in issue on appeal.
5. The court did not decide what consequences might follow from a later attempt to work on the site. No such attempt or fresh response occurred.

• Court of Appeal (Civil Division): Dismissed the appellants’ appeal in [2012] EWCA Civ 1590, upholding the conclusion that the claims were out of time.
• Employment Appeal Tribunal: Langstaff J dismissed the appellants’ appeals from the Employment Tribunal on 30 June 2011.
• Employment Tribunal, Watford: Employment Judge Mahoney held on 21 July 2009 that the racial discrimination claims were out of time and that it was not just and equitable to extend time.