Establishing an 'act extending over a period' in discrimination claims
Solicitor, Veale Wasbrough Vizards
In a recent decision, the Employment Appeal Tribunal (EAT) suggested that different complaints may be considered together in deciding whether there has been an 'act extending over a period'.
In Robinson v RSCH, the claimant was a nurse who took long periods of absence due to ill-health. She was disciplined in April 2011 for working elsewhere whilst on sick leave, and received a first written warning. Following this, she was absent from work during various other periods of sickness absence.
In May 2012, Ms Robinson raised grievances, complaining of bullying, harassment, victimisation and discrimination. These were largely rejected, as was her grievance appeal.
Following a referral to Occupational Health on 3 December 2012, she was declared unfit to work, with no improvement likely.
Ms Robinson was subsequently dismissed following a capability hearing, and brought various claims in the Employment Tribunal (ET) for disability related discrimination, including direct discrimination, harassment and failure to make reasonable adjustments. She argued that the various claims constituted continuing acts and that her claim was therefore brought within the three month time limit for commencing proceedings in the ET.
The ET held that the claim was out of time and in doing so considered the claims of direct discrimination, harassment and failure to make reasonable adjustments separately.
Ms Robinson appealed on the basis that the ET should have considered the claims together to form an act extending over a period of time.
The EAT commented that there was no reason why different claims of discrimination could not be considered together. However, this was not a relevant consideration in this case, as there was still a break of more than three months between the pre-dismissal complaints and the complaints relating to the dismissal itself.
This case is a reminder to employers that historic conduct may be taken into consideration to establish a discrimination claim if it can be shown that the conduct or act was continuing over a period of time.
To reduce the risk of any such claims arising, employers should ensure that any issues or grievances raised are dealt with and formally concluded.
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