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Disciplinary proceedings may extend discriminatory conduct over a period of time

23 March 2018

The Employment Appeal Tribunal (‘the EAT’) has recently ruled that starting disciplinary proceedings can under section 123 of the Equality Act 2010 (‘EqA 2010’) amount to a discriminatory act or omission extending over a period of time.

An employee has three months from the act of discrimination complained of to bring a claim in the Employment Tribunal (‘the ET’) unless they can show that the employer’s conduct is made up of a series of acts and/or omissions which have extended over a period of time, in which case the three months starts from the end of that extended period. The ruling in Hale v Brighton & Sussex University Hospitals NHS Trust means that for employees undergoing disciplinary proceedings, their claims for discrimination will not be out of time if the act complained of was part of the disciplinary proceedings.

The Claimant, Mr Hale, was a consultant who managed a number of junior doctors including four individuals who were referred to as the ‘complainants’. Mr Hale chaired a meeting on 13 December 2013 to go through a new rota and the complainants were in attendance. The meeting became heated and the complainants covertly recorded it. After the meeting they left the room and Mr Hale engaged in an impromptu discussion where he made a number of racially offensive remarks about the complainants. As a result of this, the complainants raised a grievance about Mr Hale for bullying and harassment.

The hospital hired an external consultant to carry out an investigation into the grievance. During this process, Mr Hale also lodged a formal grievance against the complainants due to comments that they had made about him in the meeting which he alleged were of a racial tone. The same external consultant carried out an investigation into Mr Hale’s grievance as the hospital felt that both grievances were inextricably linked. It was found by the external consultant that Mr Hale had a case to answer to in respect of race discrimination and should be subject to proceedings for misconduct but in relation to the grievance he had raised, there would be no case to answer. Mr Hale was subsequently dismissed following disciplinary proceedings.

Mr Hale appealed against his dismissal but was unsuccessful. He submitted a claim to the ET for unfair dismissal and race discrimination. In relation to Mr Hale’s race discrimination claim concerning the comments that had been made by the complainants, the ET held that where the hospital had failed to carry out a formal disciplinary process into the allegations, the hospital had discriminated against him. However, the ET found that the incident was to be regarded as a one-off incident and stated that “arguments about acts extending over a period of time did not arise”. The ET therefore ruled that Mr Hale had been out of time when he submitted his claim to the ET. Mr Hale appealed this decision on the basis that the ET was wrong in its approach.

The EAT agreed with Mr Hale and overturned the ET’s decision. His Honourable Mr Justice Choudhury held that by taking the decision to instigate disciplinary procedures, it seems to me that the Respondent created a state of affairs that would continue until the conclusion of the disciplinary process”. He went to onto state that the ET “lost sight of the substance of the complaint” and “having done so, it then incorrectly treated the subdivided issues as a one off when it undoubtedly formed part of an ongoing state of affairs created by the initial decision”. The EAT held that “if any employee is not permitted to rely upon an ongoing state of affairs in situations such as this, then time would begin to run as soon as each step is taken under the procedure”. As disciplinary procedures can take a number of months to complete, if claimants had to submit a claim at each stage of a disciplinary process to ensure that they were in time to bring a claim, this would place an “unnecessary burden on Claimants when they should, in fact, be able to rely on the act extending over a period provision”’.

Comment:

This case is important as it shows employers that they must treat any disciplinary investigation into an allegation of discrimination as part of the facts or circumstances that may subsequently give rise to a discrimination claim, thereby extending the period of time in which the alleged act of discrimination took place and limiting the employers’ ability to run an out-of-time argument in any future litigation.

By Emily Jones

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