Labour & European Law Review Weekly Issue 453 20 January 2016
In order to decide when claims of discrimination are part of a continuing act, the Employment Appeal Tribunal (EAT) held in Robinson v Royal Surrey County Hospital NHS Foundation Trust and ors that tribunals can include conduct extending over a period of time even if the acts fall under different headings when considered individually.
Ms Robinson, a senior staff nurse in the hospital’s neonatal unit from June 2008, had a number of long periods of absence due to ill-health. On 1 May 2012 (during a period of sick leave), she lodged a grievance complaining of bullying, harassment, victimisation and discrimination but her complaints were largely rejected as was her subsequent grievance appeal. An occupational health report (following a referral in December 2012) advised that that Ms Robinson was unfit to work and that her symptoms were unlikely to improve whilst her work-related issues remained unresolved.
She was dismissed at a capability hearing in March 2013 and on 19 June 2013, she lodged a tribunal claim complaining of various acts of disability discrimination including direct discrimination, failure to make reasonable adjustments and harassment as well as unfair dismissal and “other complaints”.
At a preliminary hearing in November 2013, Ms Robinson identified the “other complaints” as detriments following a protected disclosure which she said she had made in about 2009, rendering her claim potentially out of time. A further preliminary hearing was heard in February 2014 to consider whether these and also the disability discrimination claims should be struck out.
Noting that Ms Robinson had not been working for three months prior to presenting her claim, the tribunal struck out the protected disclosure claim as having no reasonable prospect of success. It further considered that - with the exception of her claim that her dismissal was an act of direct disability discrimination - her other claims of disability discrimination were out of time as they were not part of a continuing act and it would not be just and equitable to extend time to hear them.
Ms Robinson appealed on the basis that the tribunal should have considered her complaints separately and was wrong to decide that her dismissal could not be part of a continuing act just because the person who dismissed her was not involved in the earlier allegations.
The EAT agreed with the tribunal that the decision to dismiss Ms Robinson was not part of an earlier continuing act as it had not relied solely on the fact that the person who dismissed her had not been involved in her earlier complaints (although this was clearly important).
Instead, it had weighed that factor against a lack of evidence to support her claim that her dismissal was part of a series of acts. The tribunal had therefore been entitled to conclude that her dismissal was due to capability, not because she would not work particular shifts or because she was asking for adjustments of her working arrangements. That being so, if there was no link between the earlier acts and the decision to dismiss, all the claims were out of time.
However, the EAT also held that there could be circumstances when it might be appropriate to consider conduct extending over a period of time which, taken individually, fall under different headings. Such an assessment would inevitably be fact- and case-specific, but if the claimant was, for example, complaining that putting her on particular shifts was a continuing act of direct discrimination and that failing to put her on different shifts was a failure to make reasonable adjustments, there was no reason why she could not argue that those matters should be considered together as constituting conduct extending over a period.
This case shows just how important it is for trade union representatives to set out each individual act of discrimination that the member is complaining about on the ET1 form so that the tribunal can see the picture relating to the alleged continuing course of conduct.