Time Limit for Bringing Discrimination Claims
We continued to notice the effect of the Employment Tribunal (ET) fees on claims in 2015. Of the reduced number of claims that were lodged, discrimination was a common theme.
The question of what constitutes a continuing act of discrimination and whether it continues over a period of time has always been a tricky one. In the recent Employment Appeal Tribunal (EAT) case of Robinson v Royal Surrey County Hospital NHS Foundation Trust & Others the EAT suggested that an ET can potentially consider different types of discriminatory acts when deciding if there is a continuous act over a period of time.
Generally, employees must submit their discrimination claims to an ET within 3 months of the discriminatory act taking place. Where there is a series of discriminatory acts extending over a period of time, the acts will however be treated as having happened at the end of that period of time. This means that the 3 month time limit will only start to run at the end of the course of the discriminatory acts.
What happens therefore if the series of discriminatory acts are different types of discriminatory acts?
In this particular case, following a capability hearing, the Claimant, Ms Robinson who was a nurse with a disability, was dismissed. As a result, Ms Robinson brought a claim listing a number of acts of direct disability discrimination, harassment related to her disability and a failure to make reasonable adjustments. Ms Robinson alleged that the acts occurred in 2011-2012 and included Ms Robinson’s dismissal in 2013. Each cause of action (direct disability discrimination, harassment, failure to make reasonable adjustments) was considered separately and the ET held that Ms Robinson’s dismissal was not part of a continuing act. This meant that her claims were out of time.
Ms Robinson appealed to the EAT arguing that the ET had wrongly decided to look at each of her complaints separately. Based on the specific facts of this case the EAT disagreed and stated that the ET was allowed to decide that the acts and the decision to dismiss Ms Robinson were not linked.
The EAT however went on to state that, depending on the facts of the case, it may be appropriate to consider the different types of discrimination complaints together as part of conduct that has extended over a period of time. The EAT gave the example of where there are complaints of 1) direct discrimination for putting the Claimant on specific, undesirable shifts; and 2) a failure to make reasonable adjustments to put the Claimant on different shifts.
This means that employees may be able to argue that their time limit to bring a claim in the ET has been extended by the fact they have complained about a series of continuing acts over a period of time. As a result an ET may therefore allow a claim to proceed, even if it is apparently late, if an employee can show there has been a series of discriminatory acts (different or not) over a period of time.
We will wait to see if employees seek to take advantage of this argument in 2016.