In Hale v Brighton & Sussex University Hospitals NHS Trust UKEAT/0342/16/LA the Employment Appeal Tribunal considered whether a decision to instigate an investigation which resulted in disciplinary proceedings, and the subsequent dismissal of the Claimant amounted to “conduct extending over a period of time.” The EAT concluded that the entirety of the disciplinary process was a continuing act of discrimination. The consequence was that the time limit to bring a claim ran from the end of that period and not from each individual act of discrimination.
The Claimant was a Consultant in General Surgery and a Clinical Director at the Trust. The Trust decided to commence an investigation under its Maintaining High Professional Standards framework following an initial grievance and subsequent complaints alleging that he had made racist remarks. Disciplinary proceedings followed and the claimant was dismissed; his appeal was rejected.
The Claimant brought a claim for unfair dismissal and discrimination on the grounds of race by subjecting him to the disciplinary procedures and subsequently dismissing him.
Section 123(1) of the Equality Act 2010 (“EqA”) requires that proceedings for discrimination must be brought within three months of the act to which the complaint relates. However, under section 123(3)(a) conduct extending over a period is to be treated as done at the end of the period.
The Tribunal’s decision
The Tribunal had to decide whether the act to start the investigation was a one-off act with continuing consequences or a continuing act.
The Tribunal found that the decision to start the investigation was a one-off act with continuing consequences and not a continuing act culminating in his dismissal. Therefore, as a one-off act, the claim about the decision to begin the investigation was out of time.
The Claimant appealed on several grounds, including that the Tribunal was wrong to treat the decision to start the investigation as a one-off act of discrimination, rather than part of an act extending over a period.
The Employment Appeal Tribunal agreed with the Claimant, concluding that the Trust had created a state of affairs beginning with the start of the investigation process and continuing until it has ended. It was consequently a continuing act, not a one-off act. Therefore, the limitation period for bringing a claim ran from the end of that whole process rather than from each individual element of the process e.g investigation, disciplinary.
The decision means that in such cases it is unnecessary to bring several individual claims in respect of each part of the process; a Claimant can rely on it being an act extending over a period of time. It is however, important to seek legal advice at the earliest opportunity.
Bailey Wright & Co