Employment Tribunal Errs in Direct Discrimination 'Continuing Act' Case
The Employment Appeal Tribunal has had to determine whether a decision taken some time ago was a 'one-off act with consequences' or part of a 'continuing act'.
Moore Stephens LLP and others v Parr (UKEAT/0238/20)
Mr Parr was an Equity Partner at a firm of accountants, Moore Stephens LLP. The LLP Members' Agreement provided for all partners to have a normal retirement age of 60, with the LLP having discretion to extend beyond that time on terms to be determined by the Managing Partner. The LLP exercised this discretion in October 2017 in accordance with Mr Parr's wishes, but only on the basis that Mr Parr would continue for two years beyond his normal retirement date as an ordinary (ie non-equity) Partner.
After an agreement was entered into providing for this change in Mr Parr's status, Mr Parr learned of proposals to sell the LLP business and was informed that he was not entitled to a share of the proceeds of any sale as a non-equity Partner. He brought a claim for direct age discrimination against the LLP among others to the Employment Tribunal, alleging losses including in relation to the proceeds of sale.
What Is Defined As a 'Continuing Act'?
The Equality Act stipulates that where an act or acts of discrimination extend over a period (commonly referred to as a 'continuing act'), they are treated as having occurred at the end of that period. Therefore, the statutory time limit for bringing a discrimination claim to the tribunal, which is normally three months starting with the date of the act to which the complaint relates, does not start to run until the end of the course of the discriminatory conduct.
The Employment Tribunal held that Mr Parr's claim was in relation to a rule which had resulted in his demotion from Equity Partner to ordinary Partner and was "conduct extending over a period" which was continuing at the date of presentation of his claim. As such, the tribunal held that his claim had been brought within the statutory time limit for a direct discrimination case. Moore Stephens LLP appealed.
What Happened with the Appeal?
The Employment Appeal Tribunal allowed the appeal, finding that the act of which the complaint was made was a specific one-off decision by the LLP that had consequences. There was no continuing application of a discriminatory rule or policy. This meant Mr Parr's claim was out of time. The tribunal referred the case back to the Employment Tribunal to see if the time limit should be extended.
What Does This Mean for Employers?
The case highlights how the distinction between a continuing act and a one-off act that has continuing consequences can be difficult to draw. The difference between a continuing application of a rule or conduct which extends over a period of time (ie a 'continuing act') and an act which had continuing consequences (ie a one-off exercise) must however be made to identify whether a discrimination claim has been brought within the relevant statutory time limits.