Ongoing publication of disciplinary warning may extend tribunal time limit

Background

In Mokhammad v General Medical Council, a doctor brought a direct race discrimination claim arising from disciplinary proceedings before the General Medical Council (GMC).

Following an incident involving aggressive behaviour, the Medical Practitioners Tribunal found that the claimant had committed serious misconduct but that his fitness to practise was not impaired. It nevertheless issued him with a warning, which remained published on the GMC's website for two years.

The warning was subsequently quashed following judicial review. The claimant then brought employment tribunal proceedings alleging that the decision to issue the warning, and its continued publication on the GMC's website, amounted to direct race discrimination.

The employment tribunal held that the claim was out of time. It treated the relevant act as occurring when the warning was first published and concluded that it was not just and equitable to extend time.

Decision

The Employment Appeal Tribunal allowed the appeal.

It held that the tribunal had failed to consider whether the claimant's complaint related to conduct extending over a period within the meaning of section 123(3)(a) of the Equality Act 2010. The continued publication of the warning on the GMC's website could amount to an ongoing state of affairs rather than a one-off act. If so, time would begin to run only when that conduct ended, namely, when the warning was removed from the website.

The EAT observed that employment lawyers should avoid referring to a "continuing act", as that phrase can distract from the wording of the legislation. Instead, tribunals should ask three questions: when did the alleged act take place; does the complaint concern conduct extending over a period; and, if so, when did that conduct end?

The EAT also held that the tribunal had erred in concluding that it would not be just and equitable to extend time. In particular, it had attached weight to prejudice arising from the passage of time and the potential effect on witness recollection, despite the GMC having accepted that it intended to rely only on documentary evidence.

The case was remitted to the same employment judge to reconsider whether it was just and equitable to extend time.

Learning points

This decision is a useful reminder that limitation does not always begin to run when the original decision is made. Where a claimant complains about an ongoing state of affairs, employers should consider whether the alleged discriminatory conduct may properly be characterised as conduct extending over a period under section 123 of the Equality Act 2010.

The judgment also provides helpful guidance on the correct approach to analysing limitation. Rather than asking whether there has been a "continuing act", tribunals should focus on the statutory language and identify whether the complaint concerns conduct extending over a period and, if so, when that conduct ended.

Finally, the decision highlights that, when considering whether it is just and equitable to extend time, tribunals should carefully examine the actual prejudice caused by any delay. General concerns about fading witness recollection may carry little weight where the relevant issues can be determined largely from contemporaneous documents.

For more information or advice, please get in touch with Matt Verrier in our Employment team.