Law Report: Nurse's discrimination complaint time-barred - Sougrin v Haringey Health Authority - Court of Appeal (Lord Donaldson of Lymington, Master of the Rolls, Lord Justice Balcombe and Sir John Megaw), 4 June 1992

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A staff nurse's complaint alleging racial discrimination on the basis that she was graded on lower pay than a white nurse, without alleging a policy by the employer to discriminate against black nurses, was a complaint about a single act of discrimination with the continuing consequence that she was paid less and not a complaint about a continuing act of discrimination. Accordingly her complaint was time-barred under section 68 of the Race Relations Act 1976 since it was not made to an industrial tribunal within three months of the alleged act of discrimination.

The Court of Appeal dismissed an appeal by the appellant, Merle Sougrin, from the decision of the Employment Appeal Tribunal (1991) ICR 791 that her complaint of racial discrimination by the health authority was out of time.

Section 68 of the Race Relations Act 1976 provides: '(1) An industrial tribunal shall not consider a complaint . . . unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done . . .'

Mrs Sougrin was one of four staff nurses employed by the health authority on night duty on a 25-bed medical ward at the North Middlesex Hospital. Mrs Sougrin and two other nurses were black; the fourth was white.

In April 1988 there was a massive regrading of staff within the National Health Service. Staff nurses like the applicant could be grade E or F. Grade F carried higher rates of pay than grade E. The difference was some pounds 2,000. In October 1988 all four were graded E. All appealed. The white nurse used the informal appeal procedure and was regraded F. Mrs Sougrin's formal appeal was dismissed on 13 November 1989. Another nurse's appeal was dismissed in January 1990.

Mrs Sougrin applied to the industrial tribunal on 2 May 1990, having waited until she learned the result of the other nurse's appeal. She complained of unfair grading which took place on 13 November 1989.

An industrial tribunal dismissed her application as being out of time. That decision was upheld by the Employment Appeal Tribunal.

Robin Allen (O H Parsons & Partners) for Mrs Sougrin; Martin Griffiths (Breachcroft Stanleys) for the health authority.

LORD JUSTICE BALCOMBE said that the appeal raised the question whether the act of discrimination about which the complaint was made was a single act with continuing consequences, or was a continuing act. In order to see what was 'the act complained of' within section 68(1) it was necessary to look at the originating application. These were frequently prepared by an applicant acting without the benefit of professional advice and the industrial tirbunal should not approach them in a technical manner but should look to see what was the substance of the complaint.

Looked at in that way it was clear that Mrs Sougrin's complaint was that while a white nurse was graded F, she was graded E and the employer finally discriminated against her when on 13 November 1989 it rejected her appeal.

Amies v Inner London Education Authority (1977) ICR 308 concerned a complaint of sexual discrimination, where a man rather than a female art teacher and deputy department head was appointed as department head at a school. It was held that the complaint was in relation to a single act.

The analogy between Amies and the present case was close. There was no rule that a woman could not be promoted to head of department; it was not suggested that the health authority had a rule that a black nurse could not be promoted to grade F. It was the refusal to upgrade Mrs Sougrin and the upgrading of the white nurse which was the subject of Mrs Sougrin's complaint.

Calder v James Findlay Corporation Ltd (1989) ICR 157 illustrated a case of a continuing discriminating act, where the employers operated a scheme for mortgage subsidies which was available to men but not to women. The Employment Appeal Tribunal held that the scheme constituted a discriminatory act extending over the period of employment and was to be treated as having been done at the end of the female employee's employment.

In Barclays Bank v Kapur (1991) 2 AC 355, the contracts of the applicants, who were of Asian origin, contained a term that their previous bank service in Africa would not count towards their pension entitlement, although employees of European origin were credited with that service. Lord Griffiths said that, if an employer continued to pay lower wages to the coloured employees, it would be a continuing act lasting throughout the period of employment within section 68(7)(b), and to require a man to work on less favourable terms as to pension was as much a continuing act as to require him to work for lower current wages.

Mr Allen relied heavily on certain passages in Lord Griffiths' speech to support Mrs Sougrin's claim that she was being subjected to a continuing act of discrimination in that she was being paid less at grade E than the white nurse at grade F.

However the submission was not well founded. Lord Griffiths was referring to the case of an employer who had a policy of paying coloured employees less than their white counterparts.

In the present case the complaint made by the applicant was that she was graded E while her white comparator was graded F. This was a 'one-off' act. The continuing consequence of that act was that the applicant was paid less than the white nurse. The appeal would be dismissed.

SIR JOHN MEGAW agreed and LORD DONALDSON gave a concurring judgment.

Ying Hui Tan, Barrister