Mind the Gaps: EAT Clarifies Constraints in Demonstrating a Continuing Course of Discriminatory Conduct

Worcestershire Health and Care NHS Trust v Angela Allen [2024] EAT 40

The Facts

The Claimant brought a large number of complaints of age and disability discrimination in the Employment Tribunal in January 2020 and March 2022. The Claimant was successful in a small number of those complaints at first instance, where the ET concluded that the dismissal was part of conduct extending over a period that was linked to age discrimination complaints.

Following an appeal and cross-appeal, the EAT (in part) was required to consider whether there was conduct extending over a period.

The Law

The time limits for claims of discrimination are provided by section 123 Equality Act 2010:

123 Time Limits

1. Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of-
   • the period of three months starting with the date of the act to which the complaint relates,
     or
   • such other period as the employment tribunal thinks just and equitable.
2. ...
3. For the purposes of this section-
   • conduct extending over a period is to be treated as done at the end of the period;

Mummery LJ held in Commissioner of Police of the Metropolis v Hendricks [2002] EWCA Civ 1686, [2003] I.C.R. 530 following prior legislation that:

52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an 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.

The Findings

The EAT, presided over by His Honour Judge James Tayler, found that the Employment Tribunal erred in law by concluding that the complaints of discrimination that succeeded constituted conduct extending over a period.

HHJ Tayler rejected the Respondent’s submission that conduct extending over a period (s 123(3)) must as a matter of law all relate to the same protected characteristic. Although he did make it clear that this may be more difficult to establish. Similarly, he held that conduct extending over a period could involve a number of different types of prohibited conduct, such as a mixture of harassment and direct discrimination [13].

The EAT held that it was not enough that incidents were linked, because they all arose in the course of the implementation of a restructuring in the Respondent, and that later events would not have occurred but for the earlier events.  Reference was made to Hendricks, which held that for there to be conduct extending over a period, there must have been an ongoing situation or a continuing state of affairs that was discriminatory.

Following this, the EAT noted that there was a substantial gap between the events in the case, involving different types of prohibited conduct, different protected characteristics, and decisions by different people. Although this in itself did not preclude the possibility of there being conduct extending over a period, the ET would need to clearly identify what the continuing discriminatory conduct was. As this was not identified, the EAT substituted a finding that the complaints that succeeded did not form conduct extending over a period – remitting the decision of whether time should be extended on just and equitable grounds to the ET.

Comment

The judgment provides helpful updated guidance on when conduct may extend over a period under s 123(3) EqA.

It did accept that conduct need not be limited to the same protected characteristic or type of prohibited conduct – which could demonstrate a wider scope for establishing a continuing period in order to bring claims in time. However, the EAT explicitly acknowledged that this may be more difficult to establish.

Principally, the judgment confirmed that even where incidents are linked this is not sufficient to amount to an ‘ongoing situation or a continuing state of affairs’. This was particularly relevant where the incidents involved different people or were largely separated in time.

Tribunals have considerable discretion in determining what is required to establish a continuing discriminatory state of affairs, however, this EAT judgment usefully demonstrated that the scope for these arguments is limited.