Aziz v First Division Association (FDA)

This judgment is in five parts, namely Part 1 Introduction, Part 2 The Facts, Part 3 The Appeal to the Court of Appeal, Part 4 The Law, Part 5 Decision on the Grounds of Appeal.

This is an appeal against a decision of the Employment Appeal Tribunal to the effect that certain heads of claim are time-barred. The appellant, Ms Halima Aziz, is claimant in the employment tribunal, appellant in the appeal to the Employment Appeal Tribunal and appellant in this court. I shall refer to her as Ms Aziz. The respondent in the employment tribunal proceedings and in the appeal to this court is the First Division Association, generally known as "FDA". FDA is a trade union whose members include many employees of the Crown Prosecution Service.

I shall use a number of abbreviations in this judgment. I shall refer to the Crown Prosecution Service as "CPS". I shall refer to the employment tribunal as "ET". I shall refer to the Employment Appeal Tribunal as "EAT". I shall refer to certain proceedings brought by Ms Aziz in the Leeds Employment Tribunal as "the Leeds proceedings". I shall refer to certain proceedings brought by Ms Aziz in the London South Employment Tribunal as "the London proceedings". I shall refer to the Race Relations Act 1976 as "the 1976 Act".

Section 68 of the 1976 Act provides so far as material:

Ms Aziz is a solicitor and a senior crown prosecutor employed by the CPS. Between 1995 and 2001 Ms Aziz was based at the Bradford branch of the CPS. On 10 October 2001 Ms Aziz was suspended pending an inquiry into allegations against her of gross misconduct. The individuals who were involved in the decision to suspend were Neil Franklin (Director of Human Resources), Nigel Cowgill (Head of Bradford Criminal Justice Unit) and Jean Ashton (Area Business Manager). Following the meeting at which Ms Aziz was suspended, she was escorted to her desk, required to collect her possessions and to leave the premises. As the CPS office was open plan, Ms Aziz understandably found this a deeply humiliating experience.

By 14 October 2001 Mr Franklin had reached the conclusion that suspension was not necessary. He invited Ms Aziz to come to the office in order to discuss her transfer to a different branch of the CPS. By that time, however, Ms Aziz was suffering from depression and unfit for work.

Over the next few months the allegations against Ms Aziz of gross misconduct were investigated and found to be without substance. Although Ms Aziz was vindicated by the investigation, she was understandably aggrieved by the circumstances in which she had been suspended.

On 21 December 2001 Ms Aziz commenced proceedings against the CPS in the employment tribunal at Leeds ("the Leeds proceedings"). In the Leeds proceedings Ms Aziz was alleging racial discrimination against her by the CPS.

In early 2002 Ms Aziz asked her trade union, FDA, to assist her in the Leeds proceedings. In a letter to Ms Aziz dated 28 March 2002, Mr Dave Penman an official of FDA stated:

Mr Penman duly consulted Thompsons, who were the union's solicitors. Mr Andrew James of Thompsons investigated the matter and had a meeting with Ms Aziz. By letter dated 27 May 2002 Mr James delivered his advice both to FDA and to Ms Aziz. Taking matters shortly, that advice was pessimistic.

On the basis of that advice FDA decided not to fund Ms Aziz's case. There is an issue as to how FDA's decision was communicated to Ms Aziz. Ms Aziz contends that FDA simply stopped communicating with her. She telephoned FDA and left messages requesting Mr Penman to ring her back, but he never did so. FDA does not admit this allegation. However, FDA also states that after such a long lapse of time Mr Penman cannot now recall whether Ms Aziz left telephone messages to which he failed to respond.

One thing, however, is clear. In the early summer of 2002 FDA ceased assisting or advising Ms Aziz in relation to the Leeds proceedings. Ms Aziz was aware that FDA was no longer assisting or advising her in relation to those proceedings. According to her Particulars of Claim in the London proceedings, after the summer of 2002 Ms Aziz had no further dealings with FDA over the next three years.

The Leeds proceedings moved forward at a leisurely pace. Ms Aziz obtained legal representation. There was a hearing lasting nine days in February 2003 and March 2004. On 11 June 2004 the employment tribunal at Leeds gave its decision in favour of Ms Aziz. The CPS appealed. On 24 May 2005 the EAT gave judgment reversing the decision of the employment tribunal. In June 2005 Ms Aziz filed a notice of appeal to the Court of Appeal, seeking to overturn the decision of the EAT.

In July 2005 Ms Aziz contacted FDA seeking advice about the correct interpretation of the CPS disciplinary code. This matter would be important in relation to her appeal. On 12 July 2005 Mr Paul Neilson, the National Officer of FDA, telephoned Ms Aziz. Following that telephone conversation he sent a letter to Ms Aziz in the following terms:

After consulting FDA Ms Aziz continued to conduct her appeal as a litigant in person. The CPS was represented by leading and junior counsel. Ms Aziz contended that the employment tribunal's findings of fact were justified; that the ET had correctly construed the disciplinary code; and also that the EAT had erred in holding that the ET had misconstrued the code. Those submissions were successful. In its judgment dated 31 July 2006 the Court of Appeal allowed Ms Aziz's appeal and restored the decision of the employment tribunal: see Aziz v CPS [2006] EWCA Civ 1136. The Court of Appeal directed that the case be remitted to the Leeds ET, which would determine appropriate remedy for the racial discrimination that had occurred.

Following the Court of Appeal's decision the CPS commenced its own internal investigation into the affair. Two of the CPS employees who were subject to investigation, Mr Franklin and Ms Ashton, being union members, sought the assistance of FDA. Mr Neilson provided such assistance. He wrote letters on behalf of Mr Franklin and Ms Ashton and accompanied them to certain meetings. It appears from the correspondence and minutes of meetings that Mr Neilson started to assist Mr Franklin and Ms Ashton in August 2006. The CPS internal investigation ran from August 2006 until early 2007. Ms Aziz was one of the witnesses who were interviewed in the course of that investigation. The upshot of that investigation was that the CPS's internal procedures were revised, but no disciplinary action was taken against any of the individuals involved in Ms Aziz's suspension.

Whilst the CPS internal investigation was proceeding, Ms Aziz was preparing her case for the remedies hearing. On 6 December 2006 Ms Aziz applied to FDA to provide representation for her at the remedies hearing before the Leeds ET. Ms Aziz sent this request to Mr Neilson reminding him that they had previously spoken in July 2005.

This request caused some difficulty for Mr Neilson, given his involvement at that time in the CPS internal investigation. Mr Neilson took advice. On 21^st December 2006, he sent the following response to Ms Aziz:

“I must apologise for the delay in getting back to you but as the FDA did not originally act for you in this matter I needed to take advice.

I can now confirm that the FDA is prepared to act for you in the Remedies Hearing. However, I must make clear that we do not accept responsibility for any other legal costs you have incurred in pursuing your case. We have considered your request for representation at a Remedies Hearing as a separate request to your original case and have considered that request only.

I must also advise you that if you have already instructed solicitors to act for you we will stand aside and will not be able to refund any costs incurred.

We will ask RJW to act for your. Your FDA contact will be Roland Zollner who is our CPS National Treasurer. Roland will be in contact with you early in the new year to make arrangements. I am not able to act as your contact in this. As you are aware the CPS is conducting an enquiry into your case since the Court of Appeal Hearing and I have been approached by a number of FDA Members in that regard. It would therefore be inappropriate for me to have any input with regard to your Remedies Hearing.”

Following that letter FDA funded legal representation for Ms Aziz in respect of the remedy stage of the Leeds proceedings. The remedy hearing took place in June and July 2008. The ET's decision on remedy was promulgated on 1 September 2008 and included a substantial award in favour of Ms Aziz. The CPS sought unsuccessfully to review the remedy judgment. The CPS is now appealing to the Court of Appeal in respect of the remedy judgment. FDA has continued to fund Ms Aziz's representation in relation to the remedy proceedings and I understand will be funding her representation when that matter comes to the Court of Appeal.

Although FDA is funding Ms Aziz's representation during the remedy stage of the Leeds proceedings, Ms Aziz is concerned that FDA has previously treated her unfavourably on racial grounds. Accordingly on 1 August 2007 Ms Aziz commenced a claim for racial discrimination against FDA in the London South Tribunal (the London proceedings).

The claim form in the London proceedings is a lengthy and discursive document which does not proceed in chronological order. In order to simplify the task of tribunal judges in dealing with this case, a distillation of Ms Aziz's claim was prepared at a case management discussion held on 31 October 2007. That distillation reads as follows:

“(A)

Against Steve Dent, that on racial grounds –

(1)

On 15 March 1999, he wrote a weak letter to the CPS on the claimant’s behalf; and

(2)

Failed to agree to the claimant’s having FDA-funded legal representation

(B)

Against David Penman, that on racial grounds, during the period February 2002-June 2005, he –

(3)

Delayed in obtaining representation for the claimant,

(4)

Failed to write to the CPS challenging its actions,

(5)

Refused FDA funding for solicitors save for legal advice on the merits,

(6)

Failed to inform the claimant that the FDA would not represent the claimant, and

(7)

Required the claimant to choose between the support of the National Black Crown Prosecution Association and that of the FDA.

(C)

Against Paul Neilson, that on racial grounds –

(8)

After June 2005, he failed to write to the claimant or the CPS to say that the FDA would not represent the claimant.

(9)

In or about June 2005, he failed properly to represent the claimant and appeared to support the actions of the CPS as correct,

(10)

On 12 July 2005, he wrote a very brief and inaccurate letter on the claimant’s behalf;

(11)

In or about 6 July 2006, he acted as a Trade Union representative for Neil Frankling and Jean Ashton, who were white and whom the claimant had accused of discriminating against the claimant’s, while still he refused to represent the claimant, an Asian member of the FDA

(12)

On 14 August 2006, and 22 September 2006 he wrote to the CPS on behalf of Mr Frankling and Ms Ashton to the CPS in terms of strong support and he failed to do the same on the claimant’s behalf.

(13)

On 30 October 2006 and 7 November 2006, he attended and represented Mr Frankling and Ms Ashton in their investigative interviews while continuing to refuse to offer the claimant any assistance or representation at the claimant’s interviews on 30 October 2006 and 16 January 2007 or at the claimant’s employment tribunal hearings on 1 September 2006 and 1 May 2007;

(14)

He failed to correspond on the claimant’s behalf with CPS during 2006/7 and indicating to the claimant that he considered the employment tribunal decision and that of the Court of Appeal to have been wrongly decided

(15)

He failed properly to seek comparators and to require the CPS to investigate the claimant’s case;

(16)

He hindered rather than assisting Mr A Ebuzome and the claimant while on suspension.

(17)

On 21 December 2006, he refused further involvement in the claimant’s case on the grounds of conflict of interest and referring the claimant to Mr Zollner, who was only an area Trade Union representative rather than representing the claimant himself (Mr Neilson was a fully paid senior FDA official).”

(D)

Against Mr Zollner, that on racial grounds –

(18)

He delayed in obtaining representation for the claimant between 21 December 2006 and July 2007;

(E)

Against the FDA in general, that on racial grounds, --

(19)

It permitted its officials to act as set out above; and

(20)

He failed to represent the claimant as a black and/or Asian member in the same manner and with equal vigour to that afforded to Mr Frankling and Mr Ashton, both of whom are white members.”

FDA served its response in the London proceedings on 28 September 2007. FDA's defence has two separate strands. First, the various allegations of less favourable treatment are denied. Secondly, it is asserted that the various complaints of racial discrimination are out of time.

In order to address the second strand of FDA's defence, a pre-hearing review was held on 2 January 2008 before Employment Judge Hall-Smith. The claimant gave oral evidence and was cross-examined. In the course of her evidence Ms Aziz accepted that claims A1 and A2 were out of time. These matters were alleged as background only. However, she continued to pursue all of her other pleaded claims. The employment judge held that the ET had jurisdiction to hear claim D18 because arguably that related to matters which formed a continuous act and were not therefore time-barred. The employment judge also held that all the other claims were out of time. Accordingly the ET had no jurisdiction to hear claims A1 and A2, claims B3 to B7, claims C8 to C17 and claims E19 to E20. In respect of claims E19 and 20 the employment judge said this:

The employment judge also considered the circumstances of the case and came to the conclusion that this was not a matter in which it would be appropriate for the court to exercise its discretion to accept those allegations which were brought out of time. He did not consider that it was just and equitable to do so under section 68(6) of the Race Relations Act 1976.

Ms Aziz appealed against Employment Judge Paul Smith's decision to the EAT. HHJ McMullen QC heard the appeal. By two written judgments dated 16 July 2008 and 7 January 2009, HHJ McMullen dismissed Ms Aziz's appeal.

Ms Aziz was aggrieved by the decision of the EAT. Accordingly Ms Aziz now appeals to the Court of Appeal.

By a Notice of Appeal the date of which is not apparent, Ms Aziz appealed against the EAT's decision on a large number of grounds. For present purposes it is only necessary to quote three of the grounds of appeal. Ground 1A(v) reads:

The appellant has obtained permission to appeal on one ground, namely ground 2. Permission to appeal has been refused on all the other grounds. However, Ms Aziz's renewed application for permission in respect of grounds 1 and 3 has been referred for decision to the full court.

Before addressing the three surviving grounds of appeal I must first review the law.

I shall now review in chronological order the authorities which have been cited by counsel for the respondent and by Ms Aziz appearing as litigant in person and which are relevant to the interpretation of section 68 of the 1976 Act, insofar as those authorities impinge upon this appeal.

In Commissioner of Police of the Metropolis v Hendricks [2002] EWCA Civ 1686; [2003] ICR 530, a police officer alleged racial and sexual discrimination against herself over a period of 11 years. The ET, relying on section 68(7)(b) of the 1976 Act and a similar provision of the Sex Discrimination Act 1975, held that it had jurisdiction to hear the police officer's complaints. That decision was reversed by the EAT, but restored by the Court of Appeal.

Mummery LJ, with whom May LJ and Judge LJ agreed, gave guidance on the correct approach at paragraphs 48 to 52 of his judgment. I shall read out the relevant parts only of those paragraphs:

In considering whether separate incidents form part of "an act extending over a period" within section 68(7)(b) of the 1976 Act, one relevant but not conclusive factor is whether the same individuals or different individuals were involved in those incidents: see British Medical Association v Chaudhary, EAT,  24 March 2004 (unreported, UKEAT/1351/01/DA & UKEAT/0804/02DA) at paragraph 208.

One issue of considerable practical importance is the extent to which it is appropriate to resolve issues of time bar before a main hearing. Obviously there will be a saving of costs if matters outside the jurisdiction of the ET are disposed of at an early stage. On the other hand a claimant must not be barred from presenting his or her claim on any issue where there is an arguable case.

The Court of Appeal considered the correct approach to this matter in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548. In that case the claimant complained of 17 incidents of racial discrimination over a period of many months. The question of time bar was dealt with at a pre-hearing review. The claimant gave oral evidence on that occasion. Having heard the claimant's evidence, the ET allowed five of the claimant's complaints to proceed but dismissed the other 12 complaints as being out of time. The EAT and the Court of Appeal both upheld that decision. Hooper LJ gave the leading judgment, with which Hughes LJ and Thorpe LJ agreed. Hooper LJ stated that the test to be applied at the pre-hearing review was to consider whether the claimant had established a prima facie case. Hooper LJ accepted counsel's submission that the ET must ask itself whether the complaints were capable of being part of an act extending over a period.

Another way of formulating the test to be applied at the pre-hearing review is this: the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs: see Ma v Merck Sharpe and Dohme Ltd [2008] EWCA Civ 1426 at paragraph 17.

In Kingston Upon Hull City Council v Matuszowicz [2009] EWCA Civ 22; [2009] ICR 1170, the claimant, a teacher in a prison, encountered difficulties because of his disabilities. The claimant presented a claim for disability discrimination because the respondent council had not transferred him to more suitable employment. The claimant's difficulties in working within a prison became apparent in August 2005. The claimant commenced proceedings in the ET on 4 October 2006, but the council contended that the claimant's claim was outside the extended time limit of six months. The employment tribunal concluded that the claim was in time because the matters complained of were an act extending over a period. The EAT reversed that decision. However, the Court of Appeal reinstated the decision of the ET. The Court of Appeal held that the claim of failure by the council to make adjustments was an allegation of a continuing omission not of a continuing act or one-off omission.

Lloyd LJ observed at paragraph 22 that the act was one of omission. The omission was a continuing one and it continued until 1 August 2006 when the employment of the claimant in that case transferred to a different employer.

The respondent places some reliance upon this decision in its skeleton argument. The claimant, on the other hand, in her skeleton argument points to paragraph 13 of the Court of Appeal's decision which emphasises the differences between the disability discrimination legislation and the racial discrimination legislation. The appellant, Ms Aziz, goes on to argue that if the case is of any relevance it supports her because it shows that an omission can be continuing.

It seems to me that there is force in the point which Ms Aziz makes concerning paragraph 13 of the judgment in this case and that only limited assistance is to be derived from the Hull City Council  case in relation to the present appeal.

After this review of the authorities I must now address the appellant's grounds of appeal.

The first ground of appeal is that the ET and the EAT misunderstood or misapplied the principle of "continuous act", as that term is used in section  68 of the 1976 Act. Ms Aziz stresses, both in her skeleton argument and in her oral submissions, that FDA failed to assist or represent her throughout the period May 2002 to July 2007. Ms Aziz accepts that different individuals were involved, but they were all acting in the same way. They were withholding assistance and representation from Ms Aziz. Those individuals must have been acting on instructions from above. It is for this reason that Ms Aziz brings her claim against the union, rather than against the individuals whose conduct she is criticising.

It is clear from the authorities which I referred to in Part 4 above that one has regard to whether the same individuals or different individuals were involved. This is a relevant factor but not a conclusive factor.

On pages 31 to 36 of her skeleton argument, Ms Aziz lists 76 individual acts of discrimination which she says were committed against her. I will read out by way of example only the first eight items in that list:

Some of the items in this list of 76 matters are underlined in order to denote that those matters are alleged to be continuous. In the extract which I have read out, item (h) is so underlined. It seems to me that these 76 individual acts of discrimination are really set out as details or particulars of the allegations set out in the case management order made on the 24 November 2007, summarising the claimant's allegations of racial discrimination under heads A, B, C and D.

In my view the first ground of appeal cannot succeed. The history of Ms Aziz's dealings with FDA falls into three clearly defined periods, which I shall refer to as period 1, period 2 and period 3. Period 1 ran through the early months of 2002. Ms Aziz asked FDA to support her in the Leeds proceedings which were underway. FDA instructed solicitors to advise. Those solicitors gave pessimistic advice on 28 May 2002. As a result of that advice FDA did not support Ms Aziz in the liability phase of the ET proceedings. Period 2 was very short. It fell in July 2005. Ms Aziz sought the advice of FDA concerning the interpretation of the CPS disciplinary code. FDA gave advice on that matter. Period 3 occurred after Ms Aziz's victory in the Court of Appeal. In December 2006 Ms Aziz asked FDA to provide representation for her in the remedy stage of the Leeds proceedings. FDA agreed to do so, but (on Ms Aziz's case) delayed in providing representation between 21 December 2006 and July 2007.

Applying the principles set out by the Court of Appeal in Hendricks and adopted by the courts in the later authorities, I can well see that Ms Aziz has a prima facie case for saying that FDA's conduct in each period constituted a continuing act or possibly a continuing omission. The complaints which Ms Aziz makes against FDA in respect of period 1 are, in essence, that FDA failed to provide representation for her in the liability phase of the Leeds proceedings. Those proceedings came to a conclusion in June 2004.

Ms Aziz had no dealings with FDA during the period when the CPS was pursuing its appeal to the EAT in respect of the liability judgment.

Period 2 was a short and discrete phase. In July 2005 Ms Aziz sought and received FDA's advice on one specific matter. So far as I can see, Ms Aziz did not ask FDA to do anything more or to provide any further assistance with her (successful) appeal to the Court of Appeal. It is therefore difficult to see how FDA can be criticised for not representing Ms Aziz in relation to that appeal. Even if, however, such a case could be made out on the facts, FDA's conduct could not be characterised as a continuing act or continuing omission beyond 31 July 2006. That was the date when Ms Aziz succeeded in her appeal to the Court of Appeal.

Ms Aziz had no direct dealings with FDA between July and November 2006. Miss Aziz's complaint in respect of those five months is essentially about FDA's favourable treatment of other CPS employees: see allegations B11 to B13.

Ms Aziz explained to us this morning that she was first alerted to the favourable treatment being given to other CPS employees by a bundle of documents which she received in November 2006. This bundle included letters written by Mr Neilson to the CPS on behalf of Ms Ashton and Mr Franklin. Having studied those documents, Ms Aziz decided to ask FDA to provide representation for herself in the remedy proceedings. She made that request in her letter dated 6 December 2008. FDA agreed to provide such representation, whereupon Period 3 commenced.

The matters occurring between July and December 2006 of which Ms Aziz complains may possibly be characterised as a continuing act over that period. However, nothing of which Ms Aziz complains after 21 December could be regarded as a continuation of those acts. I have considered whether allegation C17 might be considered as a continuing act which falls within Period 3, but I have come to the conclusion that it cannot. The complaint against Mr Neilson in allegation C17 is somewhat difficult to understand, since self-evidently he had a conflict of interest and had to pass the matter over to some other employee or agent of the union. However, even assuming that the allegation in paragraph C17 has substance, it is a matter quite separate from the matters complained of in allegation D18.

I have therefore come to the conclusion that the first ground of appeal has no prospect of success. Ms Aziz does have an arguable case to the effect that all the events within allegation D18 from late December 2006 to 4 July 2007 formed a continuing act or omission. The ET rightly let the whole of that head of claim go forward. There is no basis, however, for alleging that the matters set out in allegations A1 to A2, B3 to B7 or C8 to C17 constituted acts or omissions which continued beyond 21 December 2006. I would therefore refuse permission to appeal on the first ground.

I turn now to the second ground for which Ms Aziz has already obtained permission to appeal. Ms Aziz vigorously disputes the suggestion that allegations E19 and 20 merely sweep up paragraphs earlier. She disputes the proposition that these two allegations add nothing to the earlier paragraphs. She submits that both the ET and the EAT were wrong to take such a view.

In paragraph 7 of Ms Aziz's skeleton argument she states:

Ms Aziz developed this point orally this morning in response to questions from Dyson LJ. Dyson LJ put to Ms Aziz that she was not saying that there was a policy on the part of FDA. Her complaint was that there were acts of different FDA people who were all doing essentially the same thing. Ms Aziz agreed with that proposition. She said that all three individuals named in the specific allegations were doing exactly the same thing. She cannot prove who told them what to do, but clearly their conduct was the result of some decision taken by FDA and hence she is bringing her claim not against the individuals, who were no doubt doing what they were told, but against the organisation, FDA.

It seems to me plain on the documents and plain from Ms Aziz's oral submissions that Ms Aziz's general case is as set out in allegations E19 and 20. However, the alleged acts and omissions upon which her general case is based are those set out in paragraphs A1 to D18 inclusive. The problem with allegations E19 and E20 is that they seek to reinstate allegations A1 to C17, all of which are time-barred. Therefore Ms Aziz cannot pursue the claims encompassed in paragraphs E19 and E20.

Let me now draw the threads together in respect of ground 2. The only alleged acts and omissions which might turn out not to be time-barred are those alleged in paragraph D18. So Ms Aziz's case must be confined by that paragraph. Nevertheless, in developing her case on paragraph D18, Ms Aziz can of course argue that FDA is liable for causing or permitting Mr Zollner to behave in the manner alleged in paragraph D18. She can also contrast FDA's treatment of herself, as set out in paragraph D18, during Period 3 with the manner in which FDA treated white members of the union in and after July 2006.

For all of these reasons I would dismiss Ms Aziz's appeal on ground 2.

I turn now to ground 3. Ms Aziz submits that the ET and the EAT were perverse to accept that events between 21 December 2006 and July 2007 were continuous, whilst refusing to treat the earlier acts in the same way. In my view this ground of appeal has no prospect of success for precisely the same reasons as those which I set out when rejecting the first ground of appeal. Therefore I would refuse permission to appeal in respect of the third ground.

Let me now draw this judgment to a conclusion. For the reasons set out above I would refuse Ms Aziz's renewed application for permission on grounds 1A (v) and 1B(iv). I would also dismiss Ms Aziz's appeal.

I agree.

I also agree