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Discrimination: Continuing Acts

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Where unconnected acts of discrimination are linked by their factual setting, should they be treated as ‘conduct extending over a period’ to bring them all within the ordinary time limit for discrimination claims?

No, held the Employment Appeal Tribunal in Allen v Worcestershire Health and Care NHS Trust.

The Respondent undertook a restructuring process. The Claimant was offered a role at a lower pay grade. She did not accept the role. She was not made redundant as the Respondent had a ‘no redundancy’ approach. She went off sick and was eventually dismissed for ill-health. She brought claims of unfair dismissal, along with age and disability discrimination.

The tribunal found that ticking a box to consider the Claimant for ill-health retirement was age discrimination, as was pre-determining the Claimant's grievance. They also found that her dismissal was for a reason related to her disability. The Respondent appealed parts of the tribunal’s judgment.

The EAT held:

 - The pre-determination of the Claimant's grievance was not discriminatory. The only connection the tribunal found between the Claimant’s age and the grievance process was that the grievance included age discrimination allegations. The pre-judging of the grievance itself was the conduct that had to be ‘related to’ age. There was no evidence that it was. 

 - The act of dismissal was the only act of discrimination within ordinary tribunal time limits. The tribunal had found that the earlier discriminatory acts could be treated as ‘conduct extending over a period’ as they all related to the restructure. The EAT disagreed with this position. For there to be conduct extending over a period there must have been ongoing discriminatory conduct. It is not enough that later events would not have occurred but for the earlier events, there must be something in the conduct that involves continuing discrimination.