Normally the time limits run from the last act of discrimination and a claim must be presented to an employment tribunal within three months (minus 1 day), s. 123(1) Equality Act 2010 (EqA 2010).
The particulars in the claim, ET1, need to be chronologically narrated within a legal framework. This allows an independent judicial panel to capture the key events and to see if the principle of s. 123(1)(b) EqA 2010 applies. This is 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. This means that time does not start to run until the end of the course of discriminatory conduct.
Continued acts and time limit issues can be illustrated by a number of cases:
It is not uncommon for the acts of discrimination to date back some time, well beyond the limitation date. However, it is still important to include relevant events that are prima facie out of time. The tribunal can decide that some acts should be grouped into a continuing act, while others remain unconnected.
The appropriate test for a ‘continuing act’ is highlighted by the case of Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686: whether the employer is responsible for an ‘an ongoing situation or a continuing state of affairs’ in which the acts of discrimination occurred, as opposed to a series of unconnected or isolated incidents.
The tribunal in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548, grouped the 17 alleged individual acts of discrimination into four continuing acts, only one of which was in time.
Hale v Brighton and Sussex University Hospitals NHS Trust UKEAT/0342/17: Invoking the disciplinary procedure against Mr Hale created a state of affairs that would continue until the conclusion of the disciplinary process. It was not a one-off act with continuing consequences.
Southern Cross Healthcare v Owolabi UKEAT/0056/11): Where allegations are linked by a common personality they do not stand in isolation.
In Veolia Environmental Services UK v Gumbs UKEAT/0487/12: A manager who made adverse decisions against an employee on two different occasions led to allegations of discrimination by the employee. It was determined that the decision, over an extended period, were linked by the employee’s manager, a common personality.
A repeated refusal by the employer to address or do something may constitute a continuing act within the meaning of s. 123(3)(b) and confirmed in Cast v Croydon College [1998] IRLR 318.
Just and equitable
Alternatively, the tribunal may decide that, in the circumstances, it is just and equitable for it to extend the time for making the discrimination claim.
Victimisation
Victimisation occurs where a person (A) subjects another person (B) to a detriment because either:
- B has done a protected act
- A believes that B has done, or may do, a protected act. (Section 27(1), EqA 2010).
- The provisions provide protection to employees/workers/claimants who do (or might do) ‘protected acts’.
Examples of what is a protected act?
- Raising formal or informal complaints of discrimination.
- Giving evidence and/or providing a witness statement in support of another employee/worker/claimant discrimination complain.
- Bringing discrimination claims to the employment tribunal.
Causal link
For the victimisation to be unlawful the detriment must be linked to a protected act. This means that an employee has to demonstrate that they have suffered a detriment and as such has been disadvantaged by carrying out a protected act.
There is no specific timeframe within which a detriment must occur after a person has done a protected act.
Example: A Muslim employee complained to her manager for giving her a Christmas hamper which included amongst other presents, alcohol and cold meats containing pork. This occurred eight months ago. Last week, the employee was placed on a performance improvement plan. The employee can claim victimisation despite the fact that the protected act took place eight months ago.