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Generally, discrimination claims need to be presented to the tribunal within three months of the act of discrimination. However, a number of acts of discrimination may be linked and treated as conduct extending over a period of time, allowing a claimant to bring the discrimination claim within three months of the most recent act of discrimination.
28 March 2024
Case Study
In the case of Allen -v- Worcestershire Health and Care NHS Trust, the Employment Appeal Tribunal (EAT) was tasked with determining whether unconnected acts of discrimination linked by their factual setting, could be deemed as ‘conduct extending over a period,’ thus falling within the standard time limit for discrimination claims.
In this instance, the Trust initiated a restructuring process, resulting in the claimant being informed of the discontinuation of her position. Although offered an alternative role with reduced pay, she declined, yet was not made redundant. Subsequently, the claimant went on sick leave and was later dismissed due to her prolonged absences.
At the employment tribunal (ET), the claimant lodged various claims, including allegations of age and disability discrimination, as well as unfair dismissal.
Prior to her dismissal, the claimant’s manager had ticked a box on a referral form asking occupational health to comment if the claimant should be considered for ill health retirement. The tribunal determined this action constituted age discrimination. Additionally, it found that the Trust had pre-determined the outcome of a grievance filed by the claimant, also constituting age discrimination.
Furthermore, the tribunal concluded that the claimant’s dismissal, which factored in her disability-related absences, constituted discrimination based on factors arising from her disability.
The final discriminatory act by the Trust, namely the claimant’s dismissal, fell within the three-month time limit for claim submission. The tribunal deliberated whether the initial two incidents – the request for consideration of ill health retirement and the pre-determination of the grievance – could be viewed as part of a continuous course of conduct alongside the dismissal, thus warranting an extension of the time limit from the date of the last incident.
Case Study
The tribunal deemed the three incidents as fundamentally linked, stemming from the Trust’s restructuring, thereby granting jurisdiction to hear the complaints.
However, the EAT contested that the outcome of the claimant’s grievance did not amount to discrimination. The tribunal’s only basis for connecting the claimant’s age to the grievance process was the inclusion of age discrimination allegations. There was no use of ageist language, therefore the EAT concluded that the pre-judgment of the grievance did not inherently involve age discrimination. The EAT held that the tribunal had not identified anything that connected the prejudgment of the grievance to the claimant’s age.
It was, however, established that the act of dismissing the claimant constituted the only act of discrimination within the ordinary tribunal time limits. Although the employment tribunal asserted that prior discriminatory acts could be considered ‘conduct extending over a period’ due to their relation to the restructuring, the EAT disagreed. The EAT argued that for conduct to extend over time, there must be ongoing discriminatory acts. Mere anticipation that subsequent events would not have occurred without prior incidents is insufficient. Continuous discrimination or discriminatory acts must be present within the conduct.
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