Heard by the Court of Appeal on 23 October 2012, in front of Pill LJ, Rimer LJ and Hughes LJ. Judgment given on 4 December 2012
Counsel for the first respondent: Ben Cooper
The claimants complained of race discrimination in respect of a decision by the first respondent, the end-user in an agency relationship, to 'ban' them from their sites. The Claimants presented their claims to the employment tribunal more than three months after both the date on which the 'ban' was imposed, and the date on which they last attempted to attend any of the sites to work. However, the claimants argued that the ‘ban’ constituted an on-going 'policy', and therefore the ban amounted to an 'act extending over a period' within Race Relations Act, section 68(7) of essentially of indefinite jurisdiction (this case is pre-Equality Act 2010).
Employment Appeal Tribunal Decision
Lanstaff J held that the question of whether the allegation is of a continuing act, or a one-off act with continuing consequences, is predominantly a question of fact. Consequently, he upheld the Employment Tribunal’s conclusion that in this case the 'ban' was a one-off act with continuing consequences.
The Court of Appeal Decision
The claimants were granted permission to appeal by Sedley LJ, with a particular comment that the question may be one of law rather than fact.
The lead judgment on the final appeal was given by Pill LJ, with whom Rimer and Hughes LJJ agreed.
The Appellants contended that the ban created a continuing state of affairs, and constituted a continuing regime, even in circumstances where there was no continuing relationship with the party imposing the ban.
On behalf of the First Respondent, it was submitted that the ban was a one-off decision, albeit with continuing consequences. The focus should be on the 'act complained of' under section 68(1) of the RRA, which was the imposition of the ban itself. Further, without a continuing relationship between the parties, there was no continuing state of affairs and even a fresh refusal to permit someone to work on the site (which did not in fact occur in this case) would require reliance on the already-imposed ban and would not, in the absence of a fresh consideration, constitute a fresh act of discrimination.
The Court of Appeal accepted the submissions on behalf of the First Respondent. The ban was the act complained of under section 68(1) of the RRA. It was a 'one-off' decision and was equivalent to dismissal of an employee by an employer. Further, there could not be a continuing state of affairs amounting to an act extending over a period when there was no continuing relationship between the parties.
The potential implications, had the decision gone the other way, were clearly quite significant for end-users who use numerous casual agency staff in situations of this kind where, in essence, the mechanism of a 'ban' is used to terminate the services of agency workers in the same way as dismissal is for directly-employed staff. The result is consistent with common sense. If the claimants had succeeded, agency workers who are 'banned' could have, in theory, had unlimited time to bring any discrimination claim.
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