Appeal No.	 EAT/850/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 March 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MRS R A VICKERS

MRS A M HARROLD	APPELLANT

WILTSHIRE HEALTHCARE NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS J GAREL
(Solicitor)
Avon & Bristol Law Centre
2 Moon Street
Stokes Croft
Bristol
BS2 8QE	
For the Respondents	MR A SHAH
(of Counsel)
Messrs Wansbroughs Willey Hargrave
Solicitors
St Swithuns
1a St Cross Road
Winchester
Hampshire
SO23 9WP	

	JUDGE PETER CLARK:		This is an appeal by Mrs Harrold against a decision of a Chairman, Mr A C Tickle, sitting alone at the Bristol Employment Tribunal on 28th April 1998, dismissing that part of her Originating Application presented on 6th February 1998 complaining of racial discrimination and victimisation on the grounds that it was time-barred. That decision [“the relevant decision”] was promulgated with extended reasons on 29th April 1998. By that Originating Application [“the material complaint”] she further alleged unfair constructive dismissal. That part of the complaint is in time and is to proceed to a full merits hearing.

History
The appellant is black and of Jamaican origin. She was employed by the respondent Trust and its predecessor from 1980 as a nurse. On 12th December 1995 she presented an Originating Application [“the first complaint”] to an Employment Tribunal alleging racial discrimination. That complaint was stayed by order of the Bristol Employment Tribunal dated 25th March 1996 upon terms later contained in compromise agreement made between the parties and dated 7th May 1996.

	On 1st May 1997 she presented a further Originating Application to the Employment Tribunal [“the second complaint”] alleging racial discrimination and victimisation. By an order dated 1st July 1997 she was granted leave to amend her Originating Application to make clear that she relied on her non-selection for short-listing for sponsorship for district nurse training on 4th February 1997.

	The second complaint came on for hearing before a tribunal sitting at Bristol on 8th, 9th and 24th October 1997. By a decision with extended reasons dated 14th November 1997 the second complaint was dismissed.

	Against that decision she appealed to the EAT. That appeal was dismissed at a preliminary hearing held on 6th April 1998 (EAT/236/98).

The material complaint
By letter dated 20th October 1997 the appellant gave four weeks’ notice of termination of her employment, citing “the stress and distress of being discriminated against and victimised by the Trust and its managers since March 1993.”

	By letter dated 23rd October 1997 the respondent accepted her resignation, which was to take effect on 16th November 1997. That was to be her last working day. The respondent there denied that she had suffered discrimination or victimisation of any kind whilst in their employ.

	The material complaint, in box 1 of the form IT1, stated:

“Unfair dismissal due to racial discrimination and victimisation.”

	The particulars of her complaint repeated allegations stretching back to 1993 which had been included in her first two complaints up to and including the incident of 4th February 1997. One further specific complaint related to the promotion of a white colleague, Jill Homersley in summer 1997. She complained that she had not been informed by the respondent that this senior post was available.

The relevant decision
The Chairman found that Mrs Homersley was appointed to her new post in September 1997 and that the appellant was aware of that appointment shortly before she wrote her letter of resignation dated 20th October.

	He concluded that the “act complained of” for the purpose of s. 68(5) of the Race Relations Act 1976 was the appointment of Mrs Homersley, which the appellant heard about in mid-October 1997. Her complaint was presented outside the three month limitation period provided in s. 68(1) of the 1975 Act. It was not just and equitable to extend time under s. 68(6). The appellant was fully aware of her rights and of the time limit. Accordingly the complaint under the 1976 Act was dismissed.

The Appeal
Ms Garel’s principal submission is that the act complained of for the purpose of starting time running in the race discrimination complaint is the appellant’s constructive dismissal, the repudiatory breach of contract being the respondent’s course of racially discriminatory behaviour towards the appellant. That dismissal took effect at the expiry of the appellant’s notice on 16th November 1997. The complaint, presented on 6th February 1998, was therefore within the ordinary three month limitation period.

	She concedes that the expression “dismissal” in s. 4(2)(c) of the Race Relations Act does not include constructive dismissal. We think that concession is properly made. The Race Relations Act does not contain a definition of dismissal. That must be compared with the Sex Discrimination Act 1975 which, by an amendment contained in the Sex Discrimination Act 1986, designed to bring the Act into compliance with Community law, added s. 82(1A) which extends dismissal for the purpose of that Act to include constructive dismissal and expiry of a fixed-term contract, as also provided for in s. 95 of the Employment Rights Act 1996. The Race Relations Act was not similarly amended and we must assume that it was not Parliament’s intention to do so deliberately. We compare and contrast the position in relation to the removal of the limit on compensation, formerly contained in s. 56(2) of the Race Relations Act, by the Race Relations (Remedies) Act 1994. That amendment was to bring the Race Relations Act into line with the Sex Discrimination Act, which itself was amended so as to comply with Community law following the decision in Marshall [1993] ICR 893.

	We make that observation because in Weathersfield v Sargent [1998] IRLR 14, approved by the Court of Appeal [1999] IRLR 94, it was conceded on behalf of the appellant employer that s. 4(2)(c) of the Race Relations Act covered a constructive dismissal case. That concession was made without reference to s. 82(1A) of the Sex Discrimination Act. We think that the proper analysis is that the underlying racially discriminatory behaviour, leading an employee to resign in circumstances amounting to constructive dismissal for the purposes of unfair dismissal and sex discrimination legislation, amounts to some other detriment under s. 4(2)(c) of the Race Relations Act. It is not a dismissal within the meaning of that provision.

	In these circumstances we accept Mr Shah’s submission that the Chairman was correct in finding that the latest date on which the act complained of in this case took place was the date of the appellant’s resignation letter. There is no warrant in the 1976 Act for extending that date to the expiry of the appellant’s notice period. It is otherwise where there is an actual dismissal on notice by the employer. There, the relevant date is the date on which the employment comes to an end. Lupetti v Wren’s Old House Ltd [1984] ICR 348. Gloucestershire Workings Men’s Club & Institute v James [1986] ICR 603.

	Further, we also reject Ms Garel’s submission that the Chairman ought to have directed that the issue of limitation in the race discrimination claim should be heard with the substantive unfair dismissal claim by a full Employment Tribunal. We accept Mr Shah’s submission that, in the absence of any material factual dispute, it was a proper exercise of the Chairman’s discretion to determine the time point at a preliminary hearing, thereby reducing the time needed for a full Employment Tribunal hearing on both the race and unfair dismissal complaints.

	In these circumstances it is not strictly necessary for us to consider the question of issue estoppel, which would have arisen in relation to complaints of individual acts of discrimination where were, or could have been determined in the first and second complaints. Divine-Bortey v London Borough of Brent [1998] IRLR 525.

	Finally, Ms Garel has made it clear that she does not seek to challenge the Chairman’s finding that it would not be just and equitable to extend time under s. 68(6) of the Race Relations Act, given that the complaint was presented outside the primary limitation period.

	In these circumstances we have concluded that there are no grounds in law for interfering with the relevant decision. The appeal is dismissed.