Veitch Penny LLP - Exeter | Crediton, Devon

Case

Hendricks v the Commissioner of the Police of the Metropolis
Court of Appeal (27/11/02)

Issues

(1) Racial discrimination
(2) Sexual discrimination
(3) Continuing acts

Facts

Miss Hendricks was a black police officer with the Metropolitan Police Service from 25 January 1987. She was on long-term sick leave from 15 March 1999 suffering from stress.

She made a complaint to the Employment Tribunal based upon discrimination and victimisation, following continued acts of harassment, and of racial and sexual discrimination during most of her eleven years service. Her claim stated that she had suffered frequent instances of less favourable treatment from 1989 onwards, which had continued even after her complaint was presented to the Tribunal. Her claim included almost 100 specific allegations occurring, in the most part, between 1989 and 1994.

The Tribunal held that it had jurisdiction to consider the allegations. If the acts extend over a period, they are treated as having occurred at the end of the period. In the case of an isolated incident, time runs from when the act was done. This is crucial to determine, as the time limit for making a claim to the Employment Tribunal in such cases is only three months, unless extended by the Tribunal when it is deemed just and equitable to do to.

In this case, the Tribunal held that the incidents were indeed a "continuing act" as per the provisions of the statute. Accordingly, they could be treated as having occurred as the end of the period of acts. Its conclusion was that on the basis of the Applicant's (as yet untested) allegations there had been "a policy, rule or practice" in place. The result was that female officers and officers from ethnic minorities were treated less favourably than white, male officers.

The decision was appealed to the Employment Appeal Tribunal (EAT).

The appeal was allowed, stating that the Applicant's allegations did not support findings of a generalised discrimination policy so as to amount to a continuing act. The allegations related to the Applicant alone. There had not been any allegations of a discriminatory policy, or that other female or ethnic minority officers had been victims of it.

This decision was appealed to the Court of Appeal. It was contended that the Commissioner was liable for the continuing acts of discrimination.

Decision

It was found that whilst the EAT had erred, the Employment Tribunal had been correct in finding that it had jurisdiction to hear Miss Hendrick's allegations. They had amounted to "an act extending over a period" for the purposes of the time limits set down by the Race Relations and Sex Discrimination Acts, even though Applicant being off work for the twelve months preceding the complaint.

It was stated that both hearings had been too literal when considering what were "continuing acts". The tribunal should have concentrated upon the crux of the complaint, namely, that the Commissioner had allowed an ongoing situation in which female ethnic minority officers received less favourable treatment. It should not have been sidetracked into the identification of a "policy, rule, scheme, regime or practice" in accordance with which decisions affecting the treatment of workers were taken.

The issue was whether the complaint amounted to "an act extending over a period" as distinct from a succession of unconnected acts (where each time limit would run from the date of the act). The length of the Applicant's long-term sick leave did not rule out the possibility for continuing discrimination for which the employer may be legally responsible. In this case, her allegations were not confined to within the work environment, but extended into her treatment by the Police Service outside of that environment.

Guidance was also given regarding the handling of cases with numerous complaints. The parties should attempt to agree a list of issues and formulate proposals to reduce the areas of dispute, the number of witnesses and the volume of documents. Also, attempts ought to have been made to keep the proceedings manageable by concentrating on the most serious and most recent allegations.

Comments

It should be noted that this decision gives a liberal view of the concept of "continuing acts". A tribunal must concentrate on whether there is an "ongoing situation" or a "continuing state of affairs" in which acts of discrimination were linked. This is clearly an easier exercise of applicants that proving that the incidents form a policy, rule, scheme, regime or practice.