Can starting a disciplinary be the start of conduct extending over a period per s 123 of the Equality Act 2010?
Yes, held the EAT in Hale v Brighton & Sussex University Hospitals HNS Trust.
The Claimant is a surgeon. Four juniors raised grievances around racially offensive remarks and harassment. The Trust commenced disciplinary proceedings which culminated in dismissal. The Claimant brought claims including race discrimination.
The tribunal sought to distinguish a continuing act from a one-off act with continuing consequences per Sougrin v Haringey Health Authority and Hendricks v Commissioner of Police for the Metropolis. The tribunal held that the claim dating from instigation of the disciplinary was a one-off act and was out of time.
The EAT disagreed. The tribunal had applied an overly technical approach. The Respondent had created a state of affairs which commenced with instigation of the disciplinary and continued until the disciplinary process concluded.
It would impose an unnecessary burden on claimants if they had to lodge a claim at every stage of a process when they can rely on the conduct extending over a period provision.
Thanks to Karen Jackson of didlaw for preparing this case summary.