[2023] UKUT 311 (AAC)

It is not in dispute that there are no provisions in the Tribunal’s procedural rules (the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008) that supersede the legislative provisions contained in the Equality Act (see JL -v- Governing Body of Cherry Lane Primary School [2019] UKUT 223 (AAC)).

Most of the common law authorities relating to time limits and conduct extending over a period derive from the Employment Tribunal jurisdiction. Section 123(3)(a) of the Equality Act relating to employment tribunals is drafted in almost identical terms to paragraph 4(5)(b) of Schedule 17.

To summarise some key relevant authorities, an act occurs when it is done and cannot be equated with the date of communication, or when knowledge was acquired that the act was discriminatory (see for example Virdi -v- Commissioner of Police of the Metropolis [2007] IRLR 24, EAT at para. 25).

The question is whether the alleged discrimination is ‘conduct 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. (see Barclays Bank plc -v- Kapur [1991] IRLR 136, HL).

In Hendricks -v- Metropolitan Police Comr [2002] EWCA Civ 1686 (affirmed in Lyfar -v- Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548, CA and Aziz -v- FDA [2010] EWCA Civ 304, CA) it was held that in cases involving numerous allegations of discriminatory acts or omissions it is not necessary to establish the existence of a policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken. What has to be proved in order to establish conduct extending over a period is: (a) that the incidents are linked to each other and (b) that they are evidence of 'an ongoing situation or continuing state of affairs'.

Dismissal and demotion are examples of two common detriments relied upon in discrimination and/or whistleblowing claims as being one-off acts, where time runs from the date of the decision to dismiss or demote, despite the fact that the consequences of those decisions continue, such as the loss of pay or other benefits.

The same conclusion can be reached even where there is a policy or practice in place. For example, in the absence of any evidence of a discriminatory policy, the appointment of a man to a post in preference to a female constituted a single act of discrimination (Amies -v- Inner London Education Authority [1977] ICR 308, EAT). Also, in Parr -v- MSR Partners LLP [2002] EWCA Civ 24, the Court of Appeal held that a decision under a policy, which provided upon reaching a certain age partners at the respondent firm could be removed as an equity partner but remain as a salaried partner, was a one-off act with continuing consequences because it was not an automatic policy and a decision had to be taken by the firm in each case.

In Sougrin -v- Haringey Health Authority [1992] ICR 650 the Court of Appeal held that where there had been a failure to obtain a higher grade on an internal appeal due to racial discrimination, the loss of pay associated with the higher grade could not be construed as a continuing act of discrimination but was merely the consequence of the appeal decision. However, the Court held that circumstances would be different where an employer adopts a discriminatory policy that effectively bars an employee who has a protected characteristic from access to material benefits. This would amount to a continuing act of discrimination until the discriminatory policy is removed (see Rovenska -v- General Medical Council [1997] ICR 85, CA).

The position relating to a rule or policy was addressed in Chaudhary -v- Specialist Training Authority of the Medical Royal Colleges [2001] All ER (d) 294 (Nov), where the EAT (later affirmed by the CA), stated: ''The continuing application of a discriminatory rule or policy to a complainant is to be distinguished from the continuing existence of a discriminatory rule or policy and its single or occasional application to a complainant. . . For a complaint to be well founded that policy must be applied to the complainant to his or her detriment”.

Therefore, a discriminatory regime, rule, practice or principle that has an automatic detrimental effect on the complainant will be regarded as conduct extending over a period - such as the continuance of a mortgage subsidy scheme for male employees (Calder -v- James Finlay Corpn Ltd (1982) [1989] ICR 157, EAT) and the continuance of a pension scheme containing a provision that racially discriminated against employees whose previous service was in Africa, rather than in Europe (Barclays Bank -v- Kapur, above).

A disciplinary suspension will be an act which extends over a period, so that the last date on which the act of suspension is deemed to take place is the day on which the employee receives notification that the suspension has ceased (see Tait -v- Redcar and Cleveland Borough Council [2008] All ER (d) 17 (April), EAT).

The Court of Appeal in Cast -v- Croydon College [1998] ICR 500, confirmed that subsequent refusals resulting from further considerations of a matter, which were not merely a reference back to an earlier decision, could each start the time limit to run, regardless of whether it was based on the same facts as before. In Cast the complainant requested, both before and after her maternity leave, to be allowed to work on a job share or part-time following her return to work. On each occasion the request was turned down after fresh consideration and time began to run from each refusal.

The fine line between a one-off act on the one hand and continuing conduct on the other is demonstrated in Owusu -v- London Fire and Civil Defence Authority [1995] IRLR 574, where the EAT held that failures to promote or shortlist the applicant were undoubtedly specific instances, whereas the failure to regrade or offer him the opportunity to act up amounted to a prima facie case of a continuing act “in the form of maintaining a practice which, when followed or applied, excluded [him] from regrading or opportunities to act up”. It all depends upon the evidence and the explanations for the refusals.