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Issue 77 (February 2003)
Night nurses bank minimum wage Practice makes custom perfectly bindingThe essence of time in discrimination casesViolence in the workplaceLaw fails 'real life' testCalculating pension lossCourt of Appeal fails to deduce disability
Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96
Three months is the magic number for bringing most Tribunal claims. A claim must be presented to the Tribunal within three months from the act complained of. (Equal pay is the notable exception to this rule where it is six months from the ending of the employment contract). The rule begs the question: three months from when? In unfair dismissal cases this is the effective date of termination of employment, and can only be one date, but in discrimination cases where the allegations often span a lengthy period the position is much more complex.
The law provides in each of the Sex Discrimination Act 1975, Race Relations Act 1976 and Disability Discrimination Act 1995 that an act which extends over a period of time is treated as being done at the end of that period. So whether something can be described as a continuing act is often determinative of whether the claim has been brought within the three month period.
It was exactly this point that the Court of Appeal has considered in the landmark case of Hendricks v Commissioner of Police for the Metropolis. Ms Hendricks' claim alleged discrimination over most of her 11 years service in the force, involving nearly 100 specific allegations against 50 or so officers. She had been off sick for a period of 12 months before the Tribunal claim was lodged and the police force sought to argue that her claim was out of time and that it would not be just and equitable to extend time to validate her late complaints.
The Employment Tribunal accepted Ms Hendricks' arguments that her allegation was in effect of a continuing act that "a policy, rule or practice could be detected as a result of which female officers and officers from ethnic minorities were treated less favourably than white male officers". The Employment Appeal Tribunal overturned this decision finding that there had neither been an allegation of a discriminatory policy, rule or practice, nor allegations that others had been similarly affected.
The Court of Appeal has now restored the original Tribunal decision in a significant judgment. They found that the approach by the EAT had been too literal. The concepts of policy, rule, practice, scheme, or regime in the various cases such as Owusu v LFCDA were only examples of when an act extends over a period. Instead, the focus should be on the substance of the complaints that the Commiss-ioner of Police was responsible for an ongoing situation or state of affairs in which female or ethnic minority staff members were treated less favourably. The question is whether that was an act extending over a period, or a succession of unconnected or isolated specific acts which would each carry their own time limit.
To describe it as an ongoing situation or state of affairs was, the Court of Appeal said, a more precise way of characterising Ms Hendricks' case than to use terms such as "institutional racism" or a "prevailing way of life", a "general policy of discrimination" or a "climate" or "culture" of unlawful discrimination. The Employment Appeal Tribunal had been sidetracked into focusing on whether a policy could be discerned.
The Court of Appeal also noted that Ms Hendricks also alleged discrimination in the way she was treated whilst off sick and absent from the workplace, for example, in relation to sick pay and the contact that had been made with her when she was at home.
This is an important case which will make it significantly easier for Applicants to overcome possible time limit difficulties. The Court of Appeal also stated that there must be close case management in lengthy discrimination cases, with agreed lists of issues, and attempts to keep the proceedings within reasonable bounds by concentrating on the most serious and most recent allegations.
Ms Hendricks case can now proceed to a full hearing.