Labour & European Law Review Weekly Issue 311 21 March 2013
Claimants have to lodge a tribunal complaint within three months of the act complained of, unless the act is a continuing one in which case time runs from the date of dismissal. In Okoro and Okenwa v Taylor Woodrow Construction Ltd and ors, the Court of Appeal said that banning two contract workers from a construction site was a one-off act similar to dismissal, not a continuing one.
The two claimants were contract workers who were sent by an employment agency on 6 April 2008 to work on a site run by construction company Taylor Woodrow. However, due to a mix up in the booking, there was no work for them. They allegedly became angry and aggressive towards the site supervisor. When they turned up again the following day, they were told they had been banned from the site.
They were then sent to the site again by a different agency on 18 April and were told again that they were banned.
They brought claims of race discrimination on 6 August 2008, more than three months after the date on which the ban was imposed. They claimed, however, that as it was ongoing, the ban amounted to a “an act extending over a period” under the Race Relations Act (now the Equality Act) and could still be heard.
Tribunal and EAT decisions
The tribunal, however, disagreed, holding that the ban “was a one-off decision with continuing consequences”. As the last act complained of was on 18 April 2008, the claim was out of time and it was not just and equitable to extend the time limit.
For its part, the EAT held that the issue to be decided - whether the ban constituted a continuing act or a one-off act with continuing consequences, - was essentially one of fact for the tribunal to decide. As it had found that it was a one-off act with continuing consequences, the EAT upheld that decision.
The claimants appealed again, arguing that there was a difference between a one-off act such as dismissal and a continuing act such as a decision not to allow them on site, now and in the future. This, they argued, created “a continuing state of affairs and constitutes a continuing regime”. As they were still subject to the ban, their claims were still in time.
Court of Appeal decision
But the Court of Appeal disagreed. It said that the act complained of was the ban imposed by Taylor Woodrow in April 2008 on the two contract workers. That, it said “was a one-off act and was equivalent, in that respect, to dismissal of an employee by an employer”.
The relationship between the company and the contract workers was terminated at that point and time ran from the date the ban was imposed. “In the absence of a continuing relationship between the parties, there was no continuing state of affairs on which a complaint could be based”.
The latest date on which time could have started to run was therefore 18 April which meant that the claimants were out of time for bringing their complaint of discrimination.