‘Conduct Extending Over a Period’ in Discrimination Claims

Friday 16th February 2018

In assessing whether a discrimination claim was presented to the Tribunal in time, the EAT in Hale v Brighton and Sussex University Hospitals NHS Trust considered whether a decision which led to the commencement of disciplinary proceedings could amount to the start of ‘conduct extending over a period’, the effect of which being that the time limit to bring the claim would run from the end of that period.

Mr Hale worked as a Consultant in General Surgery for the Respondent Trust from June 1995.  Following an ill-tempered meeting in December 2013 four junior doctors raised grievances against Mr Hale and the Trust informed Mr Hale on 14 July 2014 of its decision to commence an investigation under the auspices of its MHPS (Maintaining High Professional Standards) framework.  The MHPS investigation led to disciplinary proceedings against Mr Hale and he was summarily dismissed on 16 December 2014.  The internal appeal process confirming Mr Hale’s dismissal concluded on 15 April 2015 and he commenced a number of claims against the Trust on 22 May 2015, including a claim for discrimination on the grounds of race by subjecting him to the disciplinary procedures which ultimately concluded with his dismissal.

Although the ET found that the decision to commence the MHPS investigation was discriminatory, the decision was held to be a one-off act with continuing consequences rather than the beginning of a continuing act culminating in Mr Hale’s dismissal; as such the claim for discrimination based on the decision to commence the investigation was adjudged to be out of time.

The EAT overturned that decision, holding that the decision to commence the MHPS investigation created an ongoing state of affairs which ended with Mr Hale’s dismissal; it was the beginning of a continuing act, the conclusion of which ‘started the clock’ for limitation purposes.  As Mr Hale’s claim was brought within 3 months of the end of the process, it was brought in time.  The EAT further noted that to find otherwise would be to require Claimants to present claims to the Tribunal after each stage of the disciplinary process to be sure they did not lose the right to claim for being out of time.

Comment:      This case highlights the difficulties employers face in seeking to argue that a potentially discriminatory act should be excluded by a tribunal for being out of time where the act in question commences a potentially discriminatory chain of events.  It appears that Tribunals will include such an act where the act cannot be separated from resulting acts in a potentially discriminatory process.