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27 January 2016

Time limits in discrimination claims

Under the Equality Act 2010, the time limit for lodging a discrimination claim with the Employment Tribunal (ET) is normally within three months of the date on which the discriminatory treatment occurred. Sometimes, however, the treatment takes place over a period of time, in which case the limit starts to run at the end of that period. In deciding whether discrimination was or was not continuing, the ET will consider whether the acts complained of are connected in some way. If not, the time limit for bringing a claim runs from the date of each separate incident.

In Robinson v Royal Surrey County Hospital NHS Foundation Trust, the ET considered whether complaints that related to different types of disability discrimination could be regarded as continuous discrimination under the Act.

Ms Robinson was employed at the Royal Surrey County Hospital as a senior staff nurse in the neonatal unit. During her employment, which had commenced in 2008, she had a number of long periods of absence owing to ill health ascribed to chronic fatigue syndrome. She had also raised grievances, complaining of bullying, harassment, victimisation and discrimination, which were largely rejected. After a further lengthy absence, and an occupational health report advising that she was unfit to work and no improvement in her symptoms was expected whilst her work-related issues remained unresolved, she was dismissed by reason of capability.

At a preliminary hearing, the ET rejected Ms Robinson's contention that her various claims of disability discrimination – direct discrimination, failure to make reasonable adjustments and disability-related harassment – constituted continuing acts, or that any such ongoing discriminatory treatment ended with her dismissal. In the ET's view, therefore, only her complaints of unfair dismissal and direct disability discrimination in relation to her dismissal were made in time.

Ms Robinson appealed against the ET's ruling on the grounds that the ET had erred in considering each of her complaints separately and had been wrong to conclude that the fact that the decision to dismiss her had been taken by someone unconnected with her earlier complaints meant that this was not part of a continuing act of disability discrimination.

The Employment Appeal Tribunal (EAT) dismissed her appeal. The ET was entitled to conclude that the decision to dismiss Ms Robinson was not part of an earlier continuing act. Firstly, the ET had not based its decision solely on the issue of who took the decision to terminate her employment. Whilst it had considered this to be a relevant factor, it had viewed it in the context of lack of evidence to support Ms Robinson's argument that her dismissal was part of a series of discriminatory acts and its conclusion that her dismissal was due to capability, not because she would not work particular shifts or because she was asking for adjustments to her working arrangements. By the time of her dismissal, she was simply unable to work.  Furthermore, her case was that she could not work because of the earlier discriminatory conduct, not that her dismissal was part of that conduct. The EAT agreed, therefore, that her claims relating to earlier events remained out of time.

However, the EAT went on to say that it could envisage circumstances in which it would be appropriate to consider conduct that comprised different types of discriminatory behaviour as conduct continuing over a period of time. It could see no reason, for example, why a disabled employee's complaint that being made to work particular shifts was directly discriminatory and a subsequent complaint that failing to alter the shift pattern constituted a failure to make reasonable adjustments, considered together, could not be regarded as conduct extending over a period of time.

Contact Kathryn Fielder in the employment team for advice on any discrimination law matter. Call 01753 279029 or email employmentlaw@bpcollins.co.uk.

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