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Discrimination claims and time limits

Deadline iStock 000011104806XSmall 146x219Can the entirety of a disciplinary process amount to 'conduct extending over a period', thus preventing a claim from being out of time? Nick Murrell discusses this in relation to a recent case involving a NHS trust.

The law on discrimination claims and time limits

Section 123(1) of the Equality Act 2010 (EqA 2010) sets out that discrimination proceedings must be brought within three months of the act to which the complaint relates. However, under section 123(3)(a) of EqA 2010, where conduct has extended over a period of time, the conduct will then be treated as done at the end of that period.

Background

In Hale v Brighton & Sussex University Hospitals NHS Trust Mr Hale worked as a surgeon with the respondent since 1995. As part of his role, Mr Hale was responsible for the line management of four junior doctors, three of whom were from India and one of whom was from Pakistan (the complainants).

In 2013 an initial collective grievance was raised against Mr Hale by the complainants relating to allegations of bullying and harassment. Whilst the grievance investigation was ongoing, the complainants made further complaints against Mr Hale in February 2014. These included allegations of race discrimination and harassment, and related to a meeting which had taken place in December 2013, in which Mr Hale made a number of remarks considered by the complainants to be racially offensive. The respondent instigated a disciplinary investigation in relation to these allegations.

Mr Hale submitted his own grievance alleging racial harassment against three of the complainants. An external consultant, who had been brought in by the respondent to investigate the complainants' initial grievances, was also tasked with reviewing the grievance raised by Mr Hale and the disciplinary investigation.

In September 2014 the external investigator produced three separate reports into the matters he had been asked to investigate. It was concluded that Mr Hale did have a case to answer in respect of the race discrimination claims as his comments in the meeting in December 2013 were overtly about race. Mr Hale's grievance against the three complainants was rejected.

In November 2014 Mr Hale was invited to attend a disciplinary hearing which ultimately resulted in his dismissal. Mr Hale then brought claims of unfair dismissal and race discrimination against the respondent.

Decision and appeal

The Employment Tribunal (ET) rejected Mr Hale's claims. In respect of his race discrimination claim it held that the failure to initiate a disciplinary process in respect of the comments made by the complainants was an act of discrimination. It considered that the subjective opinions of those involved in the process were very much influenced by race and that it was inconceivable that the respondent would have been as dismissive of Mr Hale's complaints had he been an ethnic minority rather than white British. However, the ET regarded this as a "one off act" and that, by the time Mr Hale brought his claim, he was out of time to do so.

On appeal to the Employment Appeal Tribunal (EAT) this decision was overturned. The EAT held that by instigating the disciplinary process against Mr Hale, the respondent had created a state of affairs that would continue until the conclusion of the disciplinary process. The EAT therefore determined that this was conduct extending over a period of time rather than a one off act.

Best practice

The EAT emphasised in this case that claimants should not have to bring numerous claims in respect of each act done which might amount to discrimination. Employers should be aware that connected events and consequences may, therefore, amount to a continuing act and may give claimants an increased period of time to bring their claim.

The case is also an important reminder that staff need to be treated consistently and that failures to do so can lead to accusations of discrimination.

Nick Murrell is a solicitor at VWV. He can be contacted on 0117 314 5627 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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