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4 December 2012
Court of Appeal
Pill, Hughes and Rimer LJJ
A discriminatory ban on individual agency workers occurs on the date the ban is imposed. It does not continue throughout the period it is applied unless there is an ongoing relationship (such as employment) between the principal and the banned workers. The time limit for bringing a race discrimination complaint therefore runs from the date the ban was imposed.
Two agency workers were banned after what Taylor Woodrow regarded as their aggressive behaviour. They attempted to attend for work on two further occasions. Both times, they were turned away. More than 3 months later, they complained to a tribunal that the reason for the ban was their race. They argued that the ban continued throughout the period it operated. Since they were still subject to the ban, their claims were not out of time. They drew an analogy with cases where a discriminatory policy applies throughout a period of employment - such as an exclusion from a pension scheme. In those cases, the discriminatory act continues throughout the employment. The employers drew an analogy with cases of dismissal - the denial of an opportunity to work continued after the dismissal but the act giving rise to the complaint was the dismissal itself.
The tribunal, EAT and Court of Appeal all held that the claims were out of time. The ban took place when it was decided on. The dismissal analogy was the correct one here because, once the workers had been banned, there was no on-going relationship between them and Taylor Woodrow.
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