Court of Appeal
Appeal by a black female police officer ('P') from a decision of the Employment Appeal Tribunal ('EAT'), allowing an appeal by the Metropolitan Police Commissioner ('C') from a preliminary decision of an employment tribunal ('ET') that the ET had jurisdiction to hear P's complaints of sex and race discrimination. C submitted that: (i) according to para.11 of the ET's extended reasons, P had conceded that there had been no specific allegation of any discriminatory conduct within the three months preceding the originating application and was not entitled to resile from that concession; (ii) following the decision in Chief Constable of Bedfordshire Police v Liversidge (2002) ECWA Civ 894, the application could not succeed in any event and should therefore be struck out; and (iii) the EAT had been right to conclude that the ET's finding on whether there had been a continuing act was erroneous.
HELD: (1) Courts should only allow concessions to be withdrawn in very special circumstances. However, this was such a case because the concession had not been made in sufficiently clear and unambiguous terms to be treated as binding on P. Paragraph 11 of the extended reasons was impossible to reconcile with other parts of the ET's decision, which made it clear that the ET had appreciated that P was relying on acts of less favourable treatment which were alleged to have continued into the three-month period immediately preceding the originating application. In those circumstances, P was not bound by any concession preventing her from submitting that this was a case involving an allegation of a continuing act. Therefore, P's complaint was not out of time. It was not right to decide appeals on the basis of concessions which had been recorded by the tribunal below in unclear and confusing terms. (2) It was not appropriate in this appeal to entertain C's application to strike out the claim on the basis of the decision in Liversidge (supra). The facts had to be established before it could be decided whether this case was covered by Liversidge. If discrimination was proved, it could be possible to distinguish Liversidge (see Chief Constable of Cumbria v McGlennon (2002) ICR 1156). If discrimination was not proved, the claim would fail in any event. (3) The ET had not erred in finding that there had been a continuing act of discrimination. On the evidence before it, the ET had been entitled to conclude that it had jurisdiction to consider P's allegations of discrimination. The EAT had allowed itself to be side-tracked by focusing on whether a policy could be discerned. The focus should have been on the substance of the complaint that C was responsible for an ongoing situation or a state of affairs in which female, ethnic minority police officers were treated less favourably. The question was whether that was an act extending over a period, as distinct from a succession of isolated or specific acts for which time would begin to run from the date when each act was committed.
Appeal allowed.
* The petition of the Commissioner of Police for the Metropolis seeking leave to appeal to the House of Lords in this case was presented and referred to an Appeal committe on 7 January 2003.
[2003] IRLR 96,[2002] EWCA Civ 1686
