Disciplinary proceedings: continuing acts of discrimination
When bringing a discrimination claim, the time-limit is 3 months, less a day, from the discriminatory act. This is clear-cut where it is just a single act of discrimination complained of. However, in cases where it is alleged an act or acts extends over a period of time, it is from the final act in that sequence that the clock starts to tick. Often there can be a fine line between a single act with continuing consequences, and a continuing act.
In a recent case, one of the key questions was whether each act taken within the disciplinary procedure was a single act, or whether all of these acts could be classified as continuing acts of discrimination.
Mr Hale was a Consultant for Brighton & Sussex University Hospitals NHS Trust (‘Trust’). His job title was Clinical Director; he was the line manager for many junior doctors and other clinical staff. Four members of his staff lodged a collective grievance against Mr Hale, alleging racially offensive remarks, bullying and harassment. From 10 February 2014, Mr Hale was signed off sick and was later diagnosed with depression. On 13 June 2014, Mr Hale lodged a formal grievance alleging racial harassment against three of the four junior doctors who lodged the collective grievance against him. The Trust concluded that Mr Hale had a case to answer (on the grievance made against him by the four junior doctors), whereas the three junior doctors did not have a case to answer (on Mr Hale’s grievance). The Trust started disciplinary proceedings against Mr Hale which resulted in his dismissal.
Mr Hale lodged a claim against the Trust, claiming that the Trust’s lack of investigation into his grievance was on the grounds of race. The Employment Tribunal (‘ET’) took the approach that each step of the disciplinary procedure was a separate act (i.e. (1) starting the disciplinary procedure; (2) inviting him to a disciplinary hearing; and (3) the decision to dismiss). In taking this approach, the ET found that the first act was seven months out of time.
When Mr Hale appealed his case to the Employment Appeal Tribunal (‘EAT’), the EAT had a different analysis to this point.
The EAT disagreed with the ET and held that the decision of the Trust to instigate disciplinary proceedings “created a state of affairs” that would continue until the disciplinary process ended. Therefore the EAT found these acts to be continuing acts (not singular acts as the ET concluded). The EAT commented that each of the steps taken in accordance with the procedures cannot be “isolated or specific acts”.
By Zahid Reza
Image used under CC courtesy of Truthout.org