When discrimination is “continuing”, the three month time limit for lodging a claim continues for as long as the discrimination continues. In Vernon v Azure Support Services Ltd and Port Vale Football Club and Bedding, the Employment Appeal Tribunal (EAT) held that the rule still applies even if the identity of the claimant’s employer changes following a TUPE transfer.
Ms Vernon worked for Port Vale Football Club until July 2011, when the club transferred its catering function (including her post) to Azure Support Services Ltd under TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006). Ms Vernon accused Mr Bedding (whose employment did not transfer) of repeated acts of sexual harassment before and after the transfer, but neither the club nor Azure took any action.
As part of the TUPE arrangements, Azure’s employees were not supposed to have any personal relationships with Port Vale’s footballers. In September 2011, Ms Vernon was asked to confirm or deny rumours that she was having a relationship with a footballer. She denied that she was, but the rumours persisted and in October she was suspended, pending an investigation.
When the allegations could not be sustained, she was asked to come back to work. However, at that point, she shared more details with her line manager about her contact with a footballer and was promptly dismissed for breaching the duty of trust and confidence. She brought claims of direct sex discrimination and sexual harassment against Azure, Mr Bedding and the football club.
The tribunal decided that Ms Vernon would not have been dismissed if she had been a man and that she had therefore been subject to direct discrimination.
It also found that she had been sexually harassed by Mr Bedding who, along with the club, was jointly and severally liable for the acts of harassment prior to the transfer. However, as her employment had transferred to Azure in July 2011 but his had not, the club could not be held liable for any acts of harassment after that date. The tribunal did not make a finding that liability for the pre-transfer harassment had transferred under TUPE to Azure. The claim (which she lodged on 29 December 2011) was in time because the harassment was a “continuing act” up to 1 October.
Ms Vernon appealed against the finding that the club’s vicarious liability for the harassment did not transfer to Azure in July 2011; while Azure appealed against the discrimination decision on the basis that the tribunal had relied on the wrong comparator.
Azure accepted at the EAT hearing that liability for the ongoing harassment transferred to it in July, but argued that Ms Vernon was out of time as the clock started to tick from the date of the TUPE transfer. The EAT agreed that the time limit in respect of “acts of harassment” would have expired on 30 September 2011, but as the tribunal found that the harassment constituted a “continuing act” extending from June to October 2011, the time limit had not expired by the time she presented her claim. As the harassment did not end when Ms Vernon’s employment transferred, Azure became liable for the acts of harassment prior to the transfer even though Mr Bedding did not work for them.
In respect of the discrimination claim, the tribunal was entitled to use a hypothetical comparator who, like Ms Vernon, had been the subject of rumours and who provided the same explanations as she had done. Whether that comparator was a homosexual male who was rumoured to have a relationship with a homosexual footballer or a heterosexual male who was rumoured to have a relationship with a heterosexual female footballer was irrelevant. All that was important was that the hypothetical comparator was sufficiently similar to Ms Vernon (except for her gender).