Sougrin v Haringey Health Authority

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE BALCOMBE,THE MASTER OF THE ROLLS
Judgment Date04 June 1992
Judgment citation (vLex)[1992] EWCA Civ J0604-1
Date04 June 1992
Docket Number92/0495

[1992] EWCA Civ J0604-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Before:

The Master of The Rolls (Lord Donaldson)

Lord Justice Balcombe

Sir John Megaw (Not Present)

92/0495

Merle Sougrin
and
Haringey Health Authority

MR ROBIN ALLEN, instructed by Messrs O.H. Parsons & Partners, appeared for the Appellant (Appellant).

MR MARTIN GRIFFITHS, instructed by Messrs Beachcroft Stanleys, appeared for the Respondent (Respondent).

LORD JUSTICE BALCOMBE
1

This appeal is with the leave of the Employment Appeal Tribunal from an order of that tribunal made on 31st July 1991. By that order the appeal tribunal dismissed the applicant's appeal from an order of an industrial tribunal registered on 2nd October 1990 which held that the applicant's complaint of racial discrimination was out of time and refusing to extend the time limit. The appeal raises yet again the question whether the act of discrimination about which complaint is made is a single act with continuing consequences or is a continuing act.

2

The applicant, Mrs Merle Sougrin, was one of four staff nurses employed by the Haringey Health Authority on night duty on a 25-bed medical ward at the North Middlesex Hospital. Mrs Sougrin and two of the other nurses (including a Mrs MacDonald) are black; Ms Mobey is white.

3

With effect from 1st April 1988 there was a massive regrading of staff within the National Health Service. Initially this takes place at local level, but thereafter there is a right of appeal to the local health authority (in this case Haringey, the employer) with a final appeal to the regional health authority. Further, without prejudice to the formal right of appeal to the employing local authority, the agreed procedure encourages aggrieved employees to bring the matter first before that authority in an informal manner.

4

There were two possible grades for staff nurses such as those in the applicant's group—"E" and "F". Grade F carries higher rates of pay than grade E. At the initial local review in October 1988 all the four staff nurses in the group were graded E. All appealed with the support of their trade union. Ms Mobey used the informal procedure and was regraded F. Mrs Sougrin's formal local appeal was dismissed on 13th November 1989. Mrs MacDonald's formal local appeal was dismissed on 30th January 1990. Mrs Sougrin has exercised her right to appeal to the regional health authority, but we were told that the system is so overwhelmed with appeals that it may be years before that appeal is heard.

5

Mrs Sougrin made her application to the industrial tribunal on 2nd May 1990, having waited until she learned the result of Mrs MacDonald's appeal. She said that her complaint was of "unfair grading" and that the date when the action of which she was complaining took place was 13th November 1989.The details of her complaint appear from the following passage from her originating application:

"When the grading system was introduced in April of 1988 the other 3 Staff Nurses like me were awarded an E grade in Oct.1988. All 4 of us appealed against the grade. In the next few months of 1989 it was brought to my attention that the only white Staff Nurse Jayne Mobey was awarded an F grade without having to attend an appeal hearing before members of the health authority. My two colleagues and I waited until the end of 1989 for our appeals. My own appeal was dismissed on November 13th 1989. I was advised to appeal to the Regional Level, but was informed that it may be a further 2 year wait for a hearing. I think I have been discriminated against."

6

As I have already said, the industrial tribunal dismissed the application as being out of time.

7

Racial discrimination in the employment field is covered by Part II of the Race Relations Act 1976.Section 54 of that Act confers upon industrial tribunals jurisdiction to entertain complaints of discrimination under Part II.

8

Section 68 of the 1976 Act provides (so far as relevant) as follows:

"68.Period within which proceedings to be brought

(1) An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

9

(7) For the purposes of this section—

(a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and

(b) any act extending over a period shall be treated as done at the end of that period; and

(c) a deliberate omission shall be treated as done when the person in question decided upon it…"

10

In order to see what is "the act complained of" within the meaning of section 68(1) it is necessary to look at the originating application. Since these are frequently prepared by an applicant acting without the benefit of professional advice the industrial tribunal should not approach the originating application in a technical manner, but should look at it to see what is the substance of the complaint. Looked at in this way it is clear that Mrs Sougrin's complaint is that while a white nurse was graded F, she (Mrs Sougrin) was graded E, and that the employer finally discriminated against her when on 13th November 1989 it rejected her appeal against her grade. That this is indeed the substance of Mrs Sougrin's complaint is confirmed by her notice of appeal to the appeal tribunal, settled by counsel, which states in paragraph 5(2):

11

"The Applicant's complaint related to the basis upon which she was graded E as opposed to a white nurse who was graded F."

12

The issue arising on this appeal has been the subject of a number of reported cases.

13

Amies v.Inner London Education Authority [1977] I.C.R. 308 concerned a complaint of sexual discrimination under the Sex Discrimination Act 1975, but section 76 of that Act is in all relevant respects the same as section 68 of the 1976 Act. The applicant, a female art teacher and deputy department head, applied for the job of department head at the school at which she taught. On 13th October 1975 a man was appointed instead. On 29th December 1975 the relevant provisions of the 1975 Act came into force and on 1st January 1976 the applicant made a complaint to an industrial tribunal that by appointing a man the employers had discriminated against her by reason of her sex. The industrial tribunal rejected her complaint on the grounds that it was in relation to a single act which had occurred before the 1975 Act came into force. The appeal tribunal dismissed her appeal. In giving the decision of the appeal tribunal Bristow J. said (at p.311):

" Was the discrimination a single act, or an 'act extending over a period,' a continuous act?

There is nothing in the definition section of the Sex Discrimination Act 1975 or the sections to which that refers to require us to give any other than the ordinary common sense meaning to the provisions of the Act. The applicant's complaint here is that by not appointing her, and by appointing a man with lesser qualifications, the employers have unlawfully discriminated against her. She herself has in our judgment given the right definition of the 'act of discrimination' of which she complained to the tribunal under section 63 (1).

Like any other discrimination by act or omission, the failure to appoint her, and the appointment of him, must have continuing consequences. She is not head of the department; he has been ever since October 13, 1975. But it is the consequences of the appointment which are the continuing element in the situation, not the appointment itself.

So, if the employers operated a rule that the position of head of department was open to men only, for as long as the rule was in operation there would be a continuing discrimination and anyone considering herself to have been discriminated against because of the rule would have three months from the time when the rule was abrogated within which to bring the complaint. In contract, in the applicant's case clearly the time runs from the date of appointment of her male rival. There was no continuing rule which prevented her appointment. It is the omission to appoint her and the appointment of him which is the subject of her complaint."

14

The greater part of this passage was cited with approval by Lord Griffiths in Barclays Bank plc v.Kapur [1991] 2 A.C. 355, 368.

15

In my judgment the analogy between the Amies case and the present case is close. Mrs Amies was not appointed head of department and continued as deputy head, presumably at a lower salary; Mrs Sougrin was not upgraded to grade F and continued at grade E at a lesser salary. There was there no rule that a woman could not be promoted to head of department; it is not suggested here that Haringey had a rule that a black nurse could not be promoted to grade F. It is the refusal to upgrade Mrs Sougrin and the upgrading of Ms Mobey which is the subject of Mrs Sougrin's complaint.

16

Calder v. James Finlay Corporation Ltd [1989] I.C.R. 157 is an illustration of a case where there was a continuing discriminating act.The applicant, a woman, applied to her employers for a mortgage subsidy which they granted to male employees over the age of 25. After she had attained the age of 25 she applied for a subsidy in May 1981 and was refused. She left her employment in October 1981 and within three months of the termination of the employment she complained that her employers had discriminated against her by refusing her a mortgage subsidy because she was a woman. The industrial tribunal were satisfied that she had been discriminated against because she was a woman but held...

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