Can There Be a Continuing Act Where Some of the Alleged Acts Are Not Discriminatory?
When only one of a number of alleged acts is determined by the ET as discriminatory, it causes debate over whether it can be considered part of a continuing act of discrimination.
No, held the Employment Appeal Tribunal (EAT) in South Western Ambulance Service NHS Foundation Trust v King.
Legal Framework
Where a number of discriminatory acts occur over a period of time, s123 Equality Act 2010 (EqA) provides that these acts can be treated as one 'continuing act'. This means that the time limit for presenting a claim, in respect of the entire course of discriminatory conduct, will not start to run until the date of the last act of discrimination.
Background
The claimant, Mrs King was employed by South Western Ambulance Service (SWAS) until her resignation on 5 October 2017. Following a breakdown in the relationship with her manager in October 2016 she raised a grievance complaining of, amongst other things, sex discrimination.
An external consultant was appointed to investigate the grievance. She produced a report in March 2017 and a grievance outcome was issued in April 2017. Mrs King appealed against the outcome and an appeal hearing took place in July 2017 and, by letter dated 11 September 2017, the appeal was dismissed.
Dissatisfied, Mrs King resigned and, on 11 December 2017, she brought proceedings in the employment tribunal (ET), claiming unfair constructive dismissal and victimisation, alleging that she had been subjected to a number of detriments as a result of raising the grievance in October 2016.
SWAS resisted the claims and raised a jurisdictional issue, claiming that any allegations that predated 27 August 2017 (which reflected the usual 3 month time limit extended by 16 days spent in early conciliation) were out of time.
Applying Section 123
The Tribunal noted that, applying s 123 of EqA, if the alleged detriments formed part of a continuing act which culminated in the issuing of the appeal outcome on 11 September 2017, then all the allegations would be in time.
It then went on to consider whether the alleged detriments did constitute acts of unlawful discrimination. The ET held that the grievance report, which was the first alleged act of victimisation, was sufficiently flawed as to amount to a detriment. However, it rejected all the other alleged detriments relied upon, including the outcome of the grievance appeal on 11 September 2017.
Nevertheless, the ET concluded that there was a course of conduct commencing with the grievance report which continued up to the dismissal of her appeal and, although it rejected her claim of constructive unfair dismissal, it upheld her claim of victimisation.
SWAS appealed. They claimed that the ET was mistaken in concluding that there was a continuing act of discrimination when all but one of the acts alleged to be part of that course of discriminatory conduct had not been found not to be acts of victimisation.
EAT's Decision
The EAT upheld the appeal. In doing so it noted that there are generally two ways that conduct might be said to form a continuing act.
- The first is where there are a series of separate discriminatory acts which are somehow linked (as opposed to being isolated or unconnected)
- The second is where there is a discriminatory policy or practice, the application of which causes a continuing act of discrimination
Mrs King argued that the discriminatory nature of the original grievance report meant that there was a continuing discriminatory state of affairs until her grievance appeal was concluded ,. However, the EAT ruled that since the tribunal had concluded that none of the other alleged detriments had been found to amount to acts of discrimination, they could not from part of a continuing act of discrimination.
The EAT then remitted the case back to the ET to determine whether it would be just and equitable to extend the time limit within which Mrs King could bring her claim.
Comment
This case provides some useful guidance about when an alleged act of discrimination can be said to form part of a continuing act, and provides some comfort that an isolated act of discrimination will not necessarily taint all subsequent parts of a process. However, it is possible that Mrs King's arguments may fair better when considered as part of an argument that it would, in these circumstances, be just and equitable to extend the time within which she must bring her claim.