Ma v Merck Sharpe & Dohme Ltd [2008] UKEAT 0487_07_1404 (14 April 2008)

JUDGMENT 4) MR P SMITH © Copyright 2008 APPEARANCES For the Appellant DR Q MA (The Appellant in Person) For the Respondent MR J GALBRAITH-MARTEN (of Counsel) Instructed by: Messrs Taylor Vinters Solicitors Merlin Place Milton Road Cambridge 9 CB4 ODP SUMMARY Race Discrimination - Continuing Act Practice and Procedure - Striking-out/dismissal Allegations of racial discrimination occurring over lengthy period of time. Meaning of "act extending over a period" and the Employment Tribunal's approach on a pre hearing review. Claimant's appeal from case management decision to limit allegations dismissed. THE HONOURABLE MRS JUSTICE COX DBE The Appellant (Dr Ma) appeals from the Judgment of the Stratford Employment Tribunal on a Pre-Hearing Review dated 24 July 2007, in which the Chairman, Ms Jones sitting alone, allowed eight of his allegations of racial discrimination to proceed to a hearing but dismissed the others as being out of time, so that there was no jurisdiction to consider them. Before us Dr Ma, representing himself as he did below, argues that the Chairman erred in law in refusing to allow all of his allegations to proceed. He contends that it is reasonably arguable that all of his allegations evidence a continuing and discriminatory state of affairs covered by the concept of " an act extending over a period " in section 68(7)(b) of the Race Relations Act 1976 . Mr Galbraith-Marten, representing the Respondent as he did below, submits that in respect of the disallowed allegations, Dr Ma had failed to show a prima facie case that there was an on-going situation or continuing state of affairs, as opposed to a series of unconnected or isolated acts; and that the Chairman was entitled to find as she did on the case put forward by Dr Ma. The appeal should therefore be dismissed. The Employment Appeal Tribunal has therefore had to grapple in this appeal with the practical problems which arise when a case management decision has been made on these issues at a Pre-Hearing Review, on the basis of the pleadings and the parties' contentions, where no evidence has been heard and the facts are complex and in dispute. The appeal provides an example of the tension which can exist between (a) the public interest in the proper determination of fact-sensitive discrimination cases by Employment Tribunals, only after hearing all the evidence, (see the observations of Lord Steyn at paragraph 24 and Lord Hope at paragraph 37 in Anyanwu v South Bank Students' Union [2001] IRLR 305 ; and (b) the need for effective case management by Tribunals, in a case where the allegations of discrimination involve many different acts by different people over many years, so as to keep the proceedings within reasonable bounds; to ensure that Tribunal time is taken up only by those matters over which there is jurisdiction; and to enable the case to be fairly tried and determined within a reasonable time frame. It is common ground here that the Chairman, in the exercise of case management powers given by the Employment Tribunal Regulations 2004 , was entitled to decide to deal with these issues at a Pre-Hearing Review, sitting alone and without hearing evidence, and assuming the facts to be as alleged by Dr Ma. No objection on grounds of law is alleged in that respect. However, it is an unfortunate fact that attempts at case management in this case have already resulted in one previous, successful appeal to the EAT by Dr Ma and therefore in delay. His ET1 was submitted in August 2005 and his allegations of discrimination against the Respondent stretch back to 1997. Further, he is still employed by the Respondent and the passage of time helps nobody. It is clearly in the interests of both parties that the case is heard as soon as possible. The Relevant Facts These are as follows, and it is necessary to set out a little of the procedural history so as to understand the issues which arise in this appeal. Dr Ma, who is of Chinese ethnic origin, is employed by the Respondent as a Research Fellow and he has worked for it in that capacity since 1997. He is highly qualified, holding postgraduate qualifications in both neuroscience and economics and he has contributed regularly to leading scientific journals in his specialist field. On 22 August 2005 he presented a claim to the Tribunal alleging that various employees of the Respondent had discriminated against him over the years in various ways on the grounds of his ethnicity, contrary to the Race Relations Act 1976 . He completed his ET1 himself. It is lengthy and discursive, with a great deal of factual detail, and the dates of the various acts referred to are not always easy to discern. The Respondent lodged its ET3 on 19 September 2005 resisting the claim, denying all the allegations and pleading, at paragraphs 2-4, that many of them were out of time and that it would not be just and equitable to extend time. The parties attended the Tribunal on 29 November 2005 where, following a case management discussion, the Chairman, Mr Haynes, recorded agreement between the parties (see the Order dated 8 December 2005) that, in relation to the question whether the Respondent had discriminated against Dr. Ma on the grounds of his race, the following 12 issues were to be decided at a hearing, which was provisionally listed for 15 days starting on 11 September 2006, namely whether: "1.1.1 The Respondent failed to supply the Claimant with adequate and appropriate support staff. 1.1.2 The Respondent had failed to promote the Claimant since 1997. 1.1.3 By paying the Claimant a lower salary than others similarly qualified 1.1.4 That the Claimant was rated lower than others in annual appraisal since 1997. 1.1.5 By transferring the Claimant to the Robotics department in August 2002. 1.1.6 Assigning the Claimant inappropriate work in view of his qualifications and experience. 1.1.7 Excluding the Claimant from Project Care Groups. 1.1.8 Starting and pursuing disciplinary proceedings against the Claimant on and after 2 March 2005. 1.1.9 Failing to pay salary increases to the Claimant in 2004 and 2005. 1.1.10 Enforcing a Performance Improvement Plan on the Claimant and enforcing this thereafter. 1.1.11 In April 2005 failing to shortlist the Claimant for Neurobiologist position. 1.1.12 Making allegations that throughout the Claimant's employment that he lacked inter personal skills and could not work with or supervise other employees." A number of case management directions were given to ensure that the parties would be ready for the hearing, including an order that the Respondent file an amended response. The amended response filed contained more detailed allegations that many of the discriminatory acts being alleged were separate and unconnected incidents, which could not be said to show any continuing state of affairs or ongoing policy and were therefore out of time. Consequently, at a further Case Management Discussion on 24 March 2006 the Chairman, Mr Lamb, ordered a Pre-Hearing Review to consider whether the Tribunal had jurisdiction to hear all of the complaints. The questions to be determined were: whether it was reasonably arguable that there was a continuing act or acts of discrimination, whether wholly or in part; and if any of the allegations were found to be out of time, would it be just and equitable to consider those allegations? Dr Ma was ordered to provide a witness statement setting out the basis for his assertion that all the acts of discrimination were linked to each other. At the first Pre-Hearing Review on 4 May 2006 the Chairman, Mr Glennie, held that all of Dr Ma's complaints relating to acts of discrimination alleged to have occurred on or before 22 May 2005 (three months before his ET1 was filed) were out of time; and that it was not just and equitable that they should be considered out of time. He excepted certain complaints relating to events which had occurred on or before 22 May 2005 but after 23 February 2005 because they came within the extended three-month time limit provided for by Regulations 15(1)(b) and 15(3)(b) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 . The Chairman's conclusion that all the complaints, save those excepted, were out of time was in effect a finding that the contrary was not reasonably arguable. Dr Ma then appealed against that ruling. He did not appeal against the finding that it was not just and equitable that all the acts should be considered out of time. On 6 February 2007 the EAT allowed his appeal, holding that the Chairman had not applied the relevant legal principles correctly to the complaints that Dr Ma was making. We do not need to refer here to the errors found to have been made on that occasion. The result was that Mr Glennie's judgment was set aside and the case was remitted to another Chairman to determine the preliminary issue at a further Pre-Hearing Review, in the light of the EAT's judgment. It is however relevant, for the purposes of this present appeal, to note how Dr Ma was putting his case both to Mr Glennie and to the EAT. Mr Glennie recorded the following at paragraphs 11-13 of his Judgment, which paragraphs were not challenged as inaccurate on appeal: "11 In his submissions to me Dr Ma identified the following as the main continuing acts on which he relied: 11.1 lack of adequate support staff (allegation 1 in the CMD); 11.2 inadequate work assignment (allegations 5 and 6 in the CMD)" 12 Dr Ma went on to identify the following as what he described as the second layer of continuing acts:- "12.1 failure to promote him (allegation 2 in the CMD); 12.2 failing to increase his salary (allegation 9 in the CMD); 12.3 unfair appraisals (allegation 4 in the CMD); 12.4 failing to recognise his scientific contribution (allegation 4 and possibly allegation 7 in the CMD); 12.5 allegations of lack of leadership and inter-personal skills (allegation 12 in the CMD). 13. Although at the hearing before me this was the way in which Dr Ma identified the allegations that he was putting, I have gone on to consider all 12 groups of allegations as identified in the Case Management Discussion. [Dated 8.12.2005]" Further, before the EAT as is clear from Dr Ma's skeleton argument prepared for that hearing, Keith J., presiding, noted at paragraph 8 of the judgment that Dr Ma was contending that: "… the 12 separate complaints which had previously been identified could be divided into 3 different groups". As the subsequent paragraphs show, the first group of complaints covered those complaints which Dr Ma contended did not relate to individual acts at all, whether or not they were linked to each other, but which represented a continuing state of affairs. There were two such complaints, namely (i) a complaint that he was not provided with adequate and appropriate support staff; and (ii) a complaint that he was assigned inappropriate work. The second group of complaints covered those complaints which Dr Ma accepted were a series of specific acts but which, when taken together, were alleged to show the existence of a discriminatory practice or policy extending over the period of his employment. There were seven such complaints which Keith J. set out at paragraph 16 as follows: "(i) he received appraisals which did not truly reflect his performance, (ii) he received lower salary increases than others who were similarly qualified and did not receive a salary increase at all in 2004 and 2005, (iii) he was not promoted when he should have been, (iv) it was regularly alleged that he lacked inter-personal skills and could not work with or supervise other employees, (v) he was excluded from groups dealing with core projects, (vi) he had a performance improvement plan imposed on him, and (vii) disciplinary proceedings were commenced against him." The third group of complaints covered two complaints which Dr Ma again accepted were specific acts but which when taken together were alleged to show the existence of a continuing discriminatory state of affairs. These were (i) Dr Ma's transfer to the Robotics Department in August 2002 and (ii) the failure to shortlist him for the post of Neurobiologist following his application for the post in April 2005. The EAT saw little difference between this group of complaints and the previous one and effectively considered them together. (See paragraph 21 of the judgment.) In allowing the appeal and remitting the preliminary issue for re-hearing Keith J. added the following cautionary observations in the concluding paragraph of the judgment: "The case will be remitted to another Chairman to determine the preliminary issue in the light of this judgment. However, we advise Dr Ma not to assume that on a reconsideration of the preliminary issue there will be a different outcome. If the Chairman concludes, after looking at all the alleged acts of discrimination as a whole, that it is not reasonably arguable that the various acts of which Dr Ma complains reveal a pattern of behaviour which is explicable only on the basis that there is some connecting link between them, and that link is Dr Ma's Chinese ethnicity, the result will be the same. Dr Ma should appreciate that such an allegation is a difficult one to prove." The Law The relevant legal principles to be applied are well established and there is no dispute about them before us. It is convenient to set them out at this point. Section 68 of the Race Relations Act 1976 , which prescribes a limitation period for complaints, provides so far as is relevant as follows: "(1) An employment tribunal shall not consider to a complaint under section 54 unless it is presented to the tribunal before the end of (a) the period of three months beginning when the act complained of was done; … (6) A court or tribunal may nevertheless consider any such complaint … which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. (7) For the purposes of this section … (b) any act extending over a period shall be treated as done at the end of that period;" Dr Ma referred us to a number of cases during his submissions including Barclays Bank v Kapur [1991] 2 WLR 401, Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 and Sougrin v Haringey Health Authority [1992] ICR 650 . However, we regard the law in this area to be most helpfully set out in the judgment of the Court of Appeal in Hendricks v The Commissioner of Police of the Metropolis [2002] EWCA Civ 1686 , upon which both parties before us sought to rely. In this case Mummery LJ, with whom the other members of the court agreed, set out the test to be applied at a preliminary hearing (now a Pre-Hearing Review) when a claimant, otherwise out of time, seeks to establish that a complaint is part of an act extending over a period. An Employment Tribunal must ask itself at that stage whether the complaints are capable of being part of an act extending over a period. Hooper LJ observed in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 , that he could see no meaningful difference between this question and the need for the Claimant to show a prima facie case. Further, in asking itself that question, Tribunals must be careful to distinguish the consequences of an act from the continuation of the act itself. The key passages in Hendricks are those at paragraphs 48-49 and 52-54, as follows: "48… Miss Hendricks has not resigned nor has she been dismissed from the service. She remains a serving officer entitled to the protection of Part 11 of the discrimination Acts. Her complaints are not confined to less favourable treatment of her in the working environment from which she was absent after March 1999. They extend to less favourable treatment of Miss Hendricks in the contact made with her by those in the service (and also in the lack of contact made with her) in the course of her continuing relationship with the Metropolitan Police Service: she is still a serving officer, despite her physical absence from the workplace. She is, in my view, entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of "an act extending over a period". I regard this as a legally more precise way of characterising her case than the use of expressions such as "institutionalised racism", "a prevailing way of life", a "generalised policy of discrimination", or "climate" or "culture" of unlawful discrimination. 49 At the end of the day Miss Hendricks may not succeed in proving that the alleged incidents actually occurred or that, if they did, they add up to more than isolated and unconnected acts of less favourable treatment by different people in different places over a long period and that there was no "act extending over a period" for which the commissioner can be held legally responsible as a result of what he has done, or omitted to do, in the direction and control of the service in matters of race and sex discrimination. It is, however, too soon to say that the complaints have been brought too late. … 52 The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of "an act extending over a period". I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the appeal tribunal allowed itself to be side-tracked by focusing on whether a "policy" could be discerned. Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is "an act extending over a period" as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. 53 1 would add a few words on the case management aspects of a case like this, where the complaints involve numerous instances of acts by many different people over a long period. As appears from the directions already given, the tribunal chairman is well aware of the importance of directions hearings to ensure that the case is ready for hearing and to explore ways of saving time and costs. 54. Before the applications proceed to a substantive hearing the parties should attempt to agree a list of issues and to formulate proposals about ways and means of reducing the area of dispute, the number of witnesses and the volume of documents. Attempts must be made by all concerned to keep the discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations. The parties' representatives should consult with one another about their proposals before requesting another directions hearing before the chairman. It will be for him to decide how the matter should proceed, if it is impossible to reach a sensible agreement." The Employment Tribunal's Judgment The Pre-Hearing Review before Ms Jones took place on 6 June 2007, Dr Ma representing himself and Mr Galbraith-Marten appearing for the Respondent. Her judgment was not sent to the parties until 24 July 2007 and at paragraph 28 the Chairman explained the delay as being " partly because of the challenge faced by the Tribunal in having to decide this issue as a preliminary matter, without hearing any evidence." It is clear to us from her detailed reasons that the Chairman took a great deal of care in considering the pleadings, the limited documentation produced and the parties' submissions before arriving at her conclusions. She directed herself, correctly, as to the relevant statutory provisions and the authorities and there is no criticism as to that. She also accepted the Respondent's submission that it is insufficient for Dr Ma to satisfy the relevant test simply by asserting that there is a continuing act or an act extending over a period. He must, at this Pre-Hearing Review, demonstrate that by reference to evidence he seeks to rely upon and to inferences he seeks to draw from primary facts. It is common ground before us that this is the correct approach for the Chairman to take. Applying the judgment of the EAT she had to be able to conclude, as she observed at paragraph 26, " that it is reasonably arguable that the various acts of which the claimant complains reveal a pattern of behaviour which is explicable only on the basis that there is some connecting link between them, and that is the claimant's Chinese ethnicity". Her conclusion was as follows: "(i) The Tribunal has jurisdiction to consider the Claimant's complaints arising from the following allegations only: (a) The failure to provide the Claimant with adequate and appropriate support staff between 1997 and 2005. (b) Assigning the Claimant inappropriate work between 1997 and 2005. (c) Transferring the Claimant to Robotics in 2002. (d) The unfair appraisals in 2004 and 2005. (e) The failure to award the Claimant with any salary increases in 2004 and 2005. (f) The failure to promote him in 2004 and 2005. (g) Imposing a Performance Improvement Plan on the Claimant in 2004. (h) The institution of disciplinary proceedings against him in 2005." (We have inserted 1997 rather than 1998 in subparagraphs (a) and (b) following the Chairman's correction of what was accepted to be a clerical mistake. See the Certificate of Correction dated 5 th September 2007.) Further, there is one additional complaint which must be added to this list, namely alleging that he had poor interpersonal skills subsequent to his transfer to robotics in 2002, for reasons which we will explain later on in this judgment. These allegations were ordered to be considered together with the four allegations which had been allowed to proceed by Mr Glennie at the earlier hearing, namely, (i) Failure to promote the claimant after 23 February 2005, (ii) Starting and pursuing disciplinary proceedings against him on and after 2 March 2005 (iii) Failing to pay the claimant a salary increase in March 2005, and (iv) Failing to short-list the claimant for the position of neurobiologist in April 2005. The remaining alleged discriminatory acts were held not to form part of a continuing act and to be out of time. At paragraphs 4-9 the Chairman recorded the way in which Dr Ma himself identified his allegations and sought to show that they were part of a continuing act. Once again he identified three different categories of complaint. His first category containing his two main complaints of less favourable treatment comprised the Respondents' failure between 1997 and 2005 to provide him with support staff; and the failure by any of the various managers, under whom he has worked, to assign him appropriate work having regard to his qualifications and experience. Dr Ma contended, as he contends before us, that these two "states of affairs" continued throughout his employment despite changes in his line managers, in the manager of his department and his transfer to the robotics department. He stated that there was in effect a "tacit agreement" between the five different managers named not to give him appropriate work or any support staff. Dr Ma's second group of complaints included a series of seven specific acts which, he contended, when taken together showed a discriminatory practice or policy extending over a period of time. These were listed in paragraph 8 of the judgment as follows: "i) a series of bad/unfair appraisals (x 6 times) ii) lower salary/no salary increases in comparison to peers iii) no promotion iv) making allegations that he lacked interpersonal skills v) exclusion from group dealing with core projects (x3) vi) imposing the Performance Improvement Plan (PIP) on him vii) instituting disciplinary proceedings" All these allegations were said to go back to 1997 and the start of his employment. The third and final set of specific acts said to form a continuing discriminatory state of affairs when taken together were: "(a) the transfer to robotics in August 2002 (b) the failure to short-list him for the neuro-biological post in April 2005." After directing herself correctly as to the applicable law at paragraphs 13-19, the Chairman set out at paragraphs 20-27 the parties' submissions. Dr Ma contended, essentially, that all the specific incidents referred to between the start of his employment in 1997 and 2005 were capable, when taken together, of indicating the existence of a practice or a continuing state of affairs, thereby constituting an act extending over a period. The Respondent's main submission was that in 2002 there was a break in the continuity of events when Dr Ma was transferred to the robotics group and that he made no complaint following that transfer. It therefore submitted that none of the alleged discriminatory acts which occurred before 2002 could reasonably be said to be connected to those alleged to have occurred after that year. Dr Ma had failed to show that the contrary was reasonably arguable or that any alleged connection between discrete acts involving different personnel at different times could reasonably be said to indicate a pattern of behaviour based on Dr Ma's ethnicity. The Chairman accepted neither party's submissions in full. She recognised that at no time did the Claimant state that there was a practice or an unspoken agreement between the managers at the Respondent company to treat people of Chinese ethnicity in a discriminatory way. He had not referred to any other ethnic members of staff employed by the Respondent, whether Chinese or otherwise, to show similarities with or differences from the way that he was treated. Dr Ma's main allegations, namely the failure to provide him with any support staff and to assign him appropriate work throughout his employment from 1997 to 2005 (his first group of allegations) were allowed to proceed. Whilst these allegations spanned some seven years, during which time Dr Ma worked in different areas, on different projects, and was managed by different people, the Chairman "on balance" accepted Dr Ma's contention that it was reasonably arguable that these alleged deliberate omissions constituted a continuing state of affairs. She held that he was therefore " entitled to an opportunity to prove to the full tribunal hearing his full case that his ethnicity was the reason for any alleged failure to provide him with support staff or appropriate work " notwithstanding the non-discriminatory explanations being advanced by the Respondent in resisting the complaints. The second and third categories of allegations of specific acts were considered together, since they raised the same issues. All these allegations were identified, correctly, as relating to acts carried out by different, individual managers over a considerable period of time and to Dr Ma's progress within the Respondent's organisation in terms of his appraisals, the lack of any salary increases as a result of the appraisals, his transfer to another department, the implementation of a performance improvement plan following his appraisals, and the disciplinary proceedings or threat of them. On the basis of the material and the submissions before her the Chairman held as follows at paragraphs 39-50: "39 The facts are that after April 2002 there was a restructuring so that the new department of Biochemistry and Molecular Biology was formed. In August 2002 the Claimant transferred to Robotics. Mr Whiting became the Head of Department. Dr Rupniak who had been the Claimant's line manager since his arrival in 1998, left the Respondent at this time and he reports to Dr Sirinathsinghi for a short time and then to Mr Simpson. Mr Simpson remains his line manager to 2005. The 2002 appraisal raises no complaint from the Claimant. 40 The Claimant's written grievance refers to the history and the 'states of affairs' dealt with above and then concentrates on Mr Simpson and his management of the Claimant in terms of his appraisals after 2002 and the subsequent disciplinary action. 41 The transfer to Robotics can be seen on its own. However, it is possible that it is also the beginning of a thread of events running through to the disciplinary action. The Claimant believes that transfer was a demotion and was done on the grounds of his race. He deals with it in his grievance letter. The transfer could possibly be in effect a failure to promote the Claimant at that time, it may also link in to the subsequent appraisals which supported the decisions not to award him any salary increases at all and further appraisals where his ability to supervise or work with colleagues was assessed. It could be that it is also from his appraisals that a decision would have been taken to implement a PIP and when that failed or was withdrawn, to institute disciplinary proceedings against him. 42 The alleged decision not to shortlist the Claimant for the position of Neurobiologist could also be linked to and result from what he saw as unfavourable appraisals. All of these complaints are alleged to have occurred at various times after 2002. The appraisals of which he complains are those in 2004 and 2005. The failure to promote and to award no salary increases which appear to be part of this continuing act are those relating to the same years of 2004 and 2005. The decision to implement the PIP was taken in 2004 and the decision to start disciplinary proceedings was communicated to him by letter dated 23 February 2005. 43 I therefore find that the Claimant's allegations of failure to promote, failure to increase his salary, unfair appraisals that relate to the period of time before his transfer to the Robotics Department are not part of any continuing act before the tribunal. They relate to the years 1998 to 2002. They are acts that were carried out by different managers who no longer had any responsibility for the Claimant after his transfer. It appears that the Claimant was actually paid inflationary increases before his transfer to the Robotics Department whereas thereafter, he was not. The Claimant complains about the transfer itself and the alleged continued failure to give him appropriate work and any support staff. But apart from that, there are no complaints relating to the period immediately following the transfer and there was a favourable appraisal. 44 I determine that the Tribunal does not have jurisdiction to consider these complaints as they have been presented more than three months after they occurred and they are not part of a continuing discriminatory act which continued up to the end of February 2005. 45 The complaints about being excluded from core project groups all refer to groups that existed in 1998 and 1999. The Claimant does not make any allegation that this continues or links in directly to anything that happened after 2000. The alleged exclusion from project core groups was attributed to Dr Rupniak and Dr Seabrook. 46 Neither of these managers continued to have responsibility for the Claimant once he had been transferred to the Robotics Department. The work that he is alleging that he was excluded from appears to be separate and discrete projects that he believes could have been done in addition to or instead of the work that [he] usually undertook for the Respondent. These allegations do not appear to be linked to the complaints about being given inappropriate work which was a state of affairs that he alleges existed throughout his employment. 47 There is no allegation of continuing exclusion from core project groups after 2000 and certainly not after his transfer to Robotics in 2002. I therefore determine that the issue concerning his membership of core project groups was no longer live after the Claimant's transfer to Robotics and therefore there is no continuing act. The complaint of being excluded from the core project groups is out of time and cannot be considered by the Tribunal at the full merit Hearing. 48 The complaints that I find could arguably be part of a continuing act are the transfer to Robotics, the appraisals of 2004 and 2005, the institution of the PIP in 2004, the failure to award any salary increases in 2004 and 2005 and the decision to institute disciplinary proceedings in 2005. These allegations together with those already held to be in time by Mr Glennie could constitute a series of connected acts or one continuing act. 49 They appear to lead directly into each other and they allegedly occurred as a result of management decisions taken by the same management team that included Mr Simpson. They do not appear to be separate consequences following from any particular act. The failure to award salary increases - even inflationary ones - does not necessarily follow from the transfer to Robotics although the poor appraisals could have had a bearing. 50 The Claimant has made an arguable case that following and including his transfer to Robotics, the Respondent treated him in a way that became increasingly serious, threatened his employment and devalued his contribution within the workplace. The Claimant case is that this occurred because of his Chinese ethnicity. As with all parts of this case, the Respondent asserts that it has a non-discriminatory reason for this treatment but at this point, the Claimant has put forward a case which will now be determined at the full merit Hearing." During the course of the hearing before us it was pointed out by the EAT that the specific act set out by the Chairman at paragraph 8(iv), namely the Respondent's allegations that Dr Ma lacked interpersonal skills, had not in fact been dealt with by the Chairman in her decision. Mr Galbraith-Marten submitted, and we agreed, that this was an oversight and that it is clear from the judgment as a whole, and in particular paragraph 43, that the Chairman intended to allow that specific act to proceed to a hearing, so far as it is alleged to have occurred after 2002. The Respondent, sensibly, agreed to proceed on that basis in this appeal rather than cause further delay by remitting the matter for clarification by the Chairman. Dr Ma did not object to this course and we will deal with it on that basis. Thus, to the Chairman's list of permitted allegations we add the following, "allegations made by the Respondent subsequent to Dr Ma's transfer to Robotics in 2002 that he lacked interpersonal skills". Finally, in the exercise of her case management powers, the Chairman dealt at paragraphs 51-53 with the question of evidence to be adduced relating to the issues she had allowed to proceed. In doing so she took into account paragraphs 53 and 54 of the Court of Appeal's judgment in Hendricks : "51 This case as it now stands covers a number of years and a number of the Respondent's personnel. The full merit Hearing is likely to cover a considerable period of time and this case could become unwieldy. In considering the next steps in this litigation I would draw the parties' attention to Regulation 3 of the Tribunal Rules of Procedure where the overriding objective of the Tribunals is set out and in particular of the need to deal with cases expeditiously and fairly and in ways which are proportionate to the complexity and importance of the issues. As both parties are aware, they are to assist the tribunal in furthering this objective. 52 In the interests of proportionality I order that the other allegations which predate the transfer to Robotics and do not concern the alleged failure to assign appropriate work and the alleged refusal to provide support staff should be excluded from the full and the alleged refusal to merits hearing. 53 I would also refer to paragraph 54 of the judgment in Hendricks which states as follows: 'Attempts must be made by all concerned to keep the discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations. The parties' representatives should consult with one another about their proposals before requesting another directions hearing before the chairman'. Matters are slightly different in this case as the Claimant is unrepresented and therefore faces additional challenges in dealing with this litigation. However, I would indicate that there are free sources of legal advice and representation available to him and a list is attached to this judgment for his perusal and benefit." A further case management discussion was indicated, when directions are to be given in order to enable the parties to prepare for the hearing. The Appeal Dr Ma's main criticism of the Chairman's ruling is that she failed to recognise that all the specific instances listed in categories 2 and 3 were connected to the category 1 allegations of failure to provide him with support staff and with appropriate work, so that all his allegations are capable of constituting an ongoing discriminatory state of affairs as explained in Hendricks . Further, he submits that, although his line managers changed over the years, there was never any change in the less favourable treatment meted out to him in all the respects alleged in categories 2 and 3. Both in his written grounds and skeleton arguments prepared for this appeal and in his oral submissions Dr Ma sought to develop these points by reference to a number of documents, including tables showing various salary and bonus rates and organisation charts for the Respondent, both before and after the merger in 2002. Further, Dr Ma criticises as incorrect in several respects the Chairman's factual assumptions in determining the preliminary issue. He wishes to be able to show that the unfair appraisals provided after 2002 and the decisions not to promote/upgrade him or to increase his salary still involved some of the same individuals who had previously been concerned with these matters before his transfer to robotics. By reference to a number of factual matters he sought to persuade us that the Chairman's decision to separate out and permit through to a hearing his allegations in respect of these acts only for the years 2004 and 2005 was perverse. Finally Dr Ma contends that at the Pre-Hearing Review it was too soon for the Chairman to say that he had not shown a link between all the specific acts alleged in categories 2 and 3 and the allegations in category 1 and that he ought to be allowed to pursue all these matters at the full hearing. The first difficulty with Dr Ma's main contention is that, although he now seeks before us to connect all three categories of allegations together, this is not how he has presented his case previously, either before the EAT at the first appeal or at the Pre-Hearing Review before Ms Jones. This is not merely a formal or technical matter. Dr Ma, although representing himself, and therefore entitled to some leeway in this respect, is a highly qualified and intelligent man who, as his pleadings and skeleton arguments amply demonstrate, is able to express himself clearly and analytically. He has obviously put a great deal of thought into how to present the substance of his case and he himself chose to categorise his complaints in the way that he did and to argue them separately. Paragraph 20 of his present notice of appeal reflects this approach. The Chairman therefore adopted Dr Ma's approach, as in our view she was entitled to, in determining the preliminary issue. The respondent's primary contention in respect of the entirety of the allegations was that 2002 marked "a fresh start", and that the tribunal had no jurisdiction to determine any of the allegations about events which occurred before that date. What Dr Ma had to show was a prima facie case that there was a continuing state of affairs between 1997 and 2005, as opposed to a series of unconnected or isolated acts involving different people at different times, upon the facts being put forward by Dr Ma. Clearly the Chairman decided that issue in Dr Ma's favour in relation to the two "headline" allegations in the first category, which in our view lie at the heart of Dr Ma's complaint against the Respondent in this case. She decided it against him in relation to the specific acts of discrimination alleged in categories 2 and 3 and she did so, in essence, on the basis that she considered there to have been a break in continuity following Dr Ma's transfer to robotics in 2002. We accept Mr Galbraith-Marten's submission that this was a finding that was open to her on the material before her, in particular given the way in which Dr Ma was advancing his own case. There is no dispute that, after Dr Ma's transfer, the department was headed by a new person, Mr Whiting; that Dr Ma reported to a different manager, Mr Simpson; and that he was undertaking different work. Whilst Dr Ma seeks before us to criticise the first appraisal after transfer as one which deliberately undermined his skills and abilities, having been shown the document ourselves we consider that the Chairman was entitled to conclude, at paragraph 43 of her reasons, that this appraisal was "favourable" to him. It included the following assessment of Dr Ma: "Qing-Ping is one of the most knowledgeable and talented scientists at TP on pain, its processing and modulation and the chemical interactions involved in these processes. His technical capability is also superb and the analysis of the data very good. Several stakeholders have however raised issues as to his timeliness in getting data out, and it is important that he continues to focus on meeting customer requirements and reacting to others' timescales and prioritisation as well as his own. That said, it is true to say that his immunocytochemical studies are very time-consuming and he, working alone, would have found it very difficult to speed up the expts significantly. Qing-Ping appears to have responded positively to the new working environment he found himself in the second half of the year. He has learnt a variety of new techniques, and has been creative in exploring experimental opportunities. He will need to continue to learn and develop automation and imaging techniques, to make himself a source of expertise and advice in playing a key role within this group. It is to be hoped that he will be able to build on the good start he has made, by focusing on further improving his skills with automation and imaging, and exploring the use of primary neurons in the automated imaging environment. Qing-Ping is a talented asset to the department, and has the potential to improve his profile by focusing on meeting customer needs, and building further collaborative interactions within and across departments." It also appears from paragraph 39 of the judgment that Dr Ma had made no complaint about this appraisal before the Chairman. In relation to the factual assumptions said by Dr. Ma to be incorrect, we are not persuaded that the Chairman assumed robotics to be a different department rather than a group within the department of molecular and cellular neuroscience, as alleged in paragraph 27(c)(1) of the Notice of Appeal. It was common ground before the Chairman that Dr Ma's transfer to robotics was a "within department" transfer. In any event, the Chairman refers on many occasions throughout her judgment simply to "robotics" and there is in our view nothing of substance in this criticism. Nor are we persuaded by Dr Ma's assertions in subparagraph (2) and (3) of paragraph 27(c) that the Chairman erred in assuming that the decisions as to upgrading and salary increase in 2004 and 2005 were made by Peter Simpson and not by Paul Whiting; and in assuming that members of the pharmacology department management committee no longer take part in the decisions of the molecular and cellular neuroscience department. The only reference made indirectly to these matters appears to be in paragraph 40 of the judgment, where the Chairman refers to Dr Ma's written grievance which, after setting out the history, concentrates on Mr Simpson and his management of Dr Ma after 2002. This we note is entirely consistent with the allegations in Dr Ma's ET1, the majority of which identify Mr Simpson as the main cause of his problems. The Chairman has, in any event, allowed to proceed to a hearing Dr Ma's headline allegations in relation to the whole period and his allegations as to unfair appraisals, salary increases and upgrading in 2004 and 2005. We cannot therefore identify any factual error capable of sustaining an appeal in this respect. Mr Galbraith-Marten also drew our attention to the fact that, whilst Dr Ma asserts that Dr Sirinathsinghji was, in discriminating against him, simply following the instructions of others, Dr Ma has never produced any documentary or other evidence capable of supporting such an assertion. The final assertion at subparagraph (4) of paragraph 27(c) is that the Chairman erred in assuming, at paragraph 39, that Dr Rupniak had been his line manager since his arrival in 1998 (subsequently corrected to 1997) until August 2002 and left the Respondent in August 2002; that the merger between the two departments happened after April 2002; and that Dr Ma reported to Dr Sirinathsinghji for a short time and then to Mr Simpson. Dr Ma states that Dr Sirinathsinghji was his line manager from January 2000 to August 2002; that the date of the merger was January 2002; and that Dr Rupniak stayed with the Respondent until 2004. However, even if these factual inaccuracies relating to dates and timing are correct, they do not appear to us to be of any significance in relation to the Chairman's rulings. It is correct that Dr Rupniak ceased to be Dr Ma's line manager when he transferred to robotics in 2002 and that she subsequently left the Respondent's employment. We add this in relation to allegation (iv) listed in paragraph 8 of the judgment, namely Dr Ma's exclusion from the group dealing with core projects. Dr Ma sought before us to argue that this was all part of his second headline allegation, namely the failure to assign him appropriate work. He is not to be criticised for doing so because, when the hearing first started, the EAT asked the parties to assist them as to the extent to which this allegation was a separate incident rather than part of the general allegation as to the provision of inappropriate work. However, having considered the matter carefully, it is clear to us that Dr Ma has throughout referred to this exclusion as a separate event occurring in 1998/1999. It was also listed as such by the Chairman Mr Haynes, in listing the complaints which were then agreed by the parties and to which Dr Ma has never objected. The Chairman has not therefore erred in her decision not to allow this allegation to proceed. In two additional grounds of appeal added with leave at the preliminary hearing before the EAT Dr Ma alleged, firstly, that the Chairman erred in regarding the single appraisal and salary increase in 2003 as rendering unarguable his case that there was a continuing act from 1997 in respect of promotion, salary and pay rating. However, this appears to us to be a misreading of the Chairman's judgment and in particular of paragraph 43. In our judgment it adds nothing to Dr Ma's main contentions which we have already dealt with above. Secondly, he sought to argue that the Chairman erred in law in failing to appreciate that the Respondent's reasons for rejecting the Appellant's grievance on 10 August 2005 repeated their reasons for treating the Appellant in a manner that he alleges was discriminatory since the commencement of his employment. However, Dr Ma did not develop this ground in his oral submissions to us and it is in any event unclear how anything said in the letter of 10 August 2005 rejecting an appeal against the rejection of Dr Ma's grievance is relevant to the question whether events predating 2002/3 are sufficiently connected to the events occurring in the period from 2002 to 2005. Once again this does not appear to us to add anything of substance to the contentions Dr Ma made in his appeal. It follows that in our judgment, in relation to the criticisms as to inaccuracies in the Chairman's factual assumptions, Dr. Ma has come nowhere near the threshold that must be crossed in order to persuade us that those factual assumptions were perverse or were assumptions that she was not entitled to make on the material before her. It follows from the above that Dr Ma's appeal must fail. He has not shown, as he must, that this Chairman has misdirected herself as to the law, misapplied the law or misunderstood the factual basis upon which she was proceeding. On the contrary it seems to us that, in carefully scrutinizing Dr Ma's allegations and the basis upon which he presented them to her, she was doing what the EAT had required her to do when remitting the case to the Tribunal in February 2007. The two central allegations in category 1 were, in our view, rightly recognised by the Chairman as being at the heart of Dr. Ma's case and were allowed through to a hearing. In our judgment there is no question of the Tribunal at the full hearing being unable to understand his case, as a result of the exclusion of earlier, specific acts considered by the Chairman to be consequences of those central allegations rather than specific acts connected to them as part of a continuing state of affairs or discriminatory practice. If Dr Ma were to succeed at the full hearing he would, of course, be able to argue about those consequences at any future remedies hearing. Given the way he presented his case below, and has done so consistently throughout this litigation, we consider that the Chairman was entitled to distinguish between the two central allegations and the second and third categories of specific acts; and between what happened in those respects before and after his transfer to robotics in 2002. Whilst we recognise that Dr Ma continues to assert that managers involved after his transfer must have had a hand in what went before, we have seen nothing in any of the material advanced to indicate that such an allegation is reasonably arguable; and we consider that the Chairman was entitled to conclude that it had been shown to be no more than a mere assertion. For all these reasons we dismiss this appeal. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII