In discrimination claims claimants have to lodge their complaint within three months of the alleged act, unless they can show that it consisted of a series of acts extending over a period of time in which case time runs from the date of the last act. In Hale v Brighton and Sussex University Hospitals NHS Trust, the Employment Appeal Tribunal (EAT) held that starting a disciplinary procedure can constitute conduct extending over a period of time.
Mr Hale, a white, British, consultant surgeon who had worked for the Trust since 1995, had line management responsibility for a number of junior doctors, including four described as “Asian”. In 2013, they lodged a collective grievance of bullying and harassment against him, prompting the Trust to start an investigation.
At a meeting to discuss a change of rota attended by the four doctors and Mr Hale in December 2013, the complainants’ behaviour was described as aggressive and inappropriate. After they left the meeting, there was an impromptu discussion at which Mr Hale was alleged to have made a number of racially offensive remarks. In February 2014, the four doctors lodged a complaint of race discrimination relating to these remarks which were added to the ongoing investigation. In June 2014, Mr Hale lodged a grievance alleging racial harassment based on statements that the doctors had allegedly made during the December meeting.
It was ultimately decided that Mr Hale had a case to answer with regard to the claim of race discrimination, but that his grievance of racial harassment should be dismissed. Following a disciplinary hearing, he was summarily dismissed. He then brought tribunal claims including one of race discrimination.
The tribunal found that the Trust had discriminated against Mr Hale when it decided not to open an investigation into his complaints but rather to discipline him, noting that had he been a member of an ethnic minority it was “inconceivable” that his complaint would have been dismissed in the same way. This was because the Trust’s attitude was unconsciously affected by the fact that Mr Hale did not fit the “normal profile” of a person subjected to racial harassment.
However, it held that this “act of discrimination” was a one-off, rather than part of an act extending over a period, which meant that Mr Hale was out of time for bringing his claim. Mr Hale appealed on a number of grounds, the main one being that the tribunal was wrong to treat the decision to instigate disciplinary procedures against him as a one-off act of discrimination.
And the EAT agreed, holding that when the Trust decided to take disciplinary measures against Mr Hale, it started a ball rolling that would continue until the disciplinary process came to an end. That decision, therefore, did not just constitute a one-off act with continuing consequences, not least because once the process was initiated, the Trust was bound to subject Mr Hale to further steps under it from time to time.
To find otherwise would mean that time would begin to run as soon as each step was taken under a disciplinary process. Given that some disciplinary procedures (particularly in the medical profession) can take months, if not years, to complete, employees would have to lodge a claim after each stage unless they could be sure that time would be extended on just and equitable grounds. This, said the EAT, would impose an unnecessary burden on claimants when it was open to them to rely on the provision extending an act over a period of time.