Section 123 of the Equality Act states that tribunal claims must be lodged within three months, unless it is just and equitable for the tribunal to extend time as a result of “conduct extending over a period”. In South Western Ambulance Service NHS Foundation Trust v King, the Employment Appeal Tribunal (EAT) held that a “continuing” act must be an act of discrimination as opposed to an allegation.

Thompsons was instructed by Unison to act on behalf of its client. 

Basic facts

In October 2016 Ms King lodged a grievance against her manager alleging that he had made sexist remarks about her, and had bullied, harassed and victimised her. An external consultant commissioned by the Trust to investigate the complaint concluded, in March 2017, that the Trust had not breached its anti-harassment and bullying policy.

After her appeal against that decision was rejected in September 2017, Ms King resigned the following month and lodged a claim of unfair constructive dismissal in December. She also claimed that she had been subjected to a number of detriments which constituted acts of victimisation under section 27(2) of the 2010 Equality Act. These included the consultant’s report as well as the dismissal of her grievance and grievance appeal.

The Trust argued that only the rejection of her grievance appeal fell within the three-month period prior to the date of lodging her claims with the tribunal.

Tribunal decision

Dismissing the claim of constructive unfair dismissal, the tribunal held that the only breach of contract had been a breach of the implied term of trust and confidence in producing the external consultant’s report which had been published seven months before Ms King resigned. As such, she had not resigned in response to it.

As for the claim of victimisation, the tribunal noted that although some of the alleged detriments pre-dated Ms King’s claim by more than three months, they were not out of time as they were part of a continuing act “extending over a period”, as set out under section 123 of the Equality Act.

After considering the alleged detriments, however, the tribunal held that only the report which had been issued in March 2017 (seven months before she lodged her claim) actually amounted to a detriment. As this had set off a course of conduct on the part of the Trust extending over a period from the publication of the report until the rejection of Ms King’s appeal, the tribunal held that her claim was in time.

The Trust appealed on the basis that, having dismissed all the allegations of detriment except for one, the tribunal could not conclude that there had been a continuing act.

EAT decision

And the EAT agreed, holding that if a tribunal wants to conclude that there has been a continuing act, that act must be an act of discrimination as opposed to an allegation. In other words, if an allegation of discrimination cannot be proven, then it cannot be part of the continuing act. To decide otherwise would mean that claimants could allege that there was a continuing act by relying upon issues which either had not taken place or which were not held to be discriminatory.

The EAT therefore concluded that there was no conduct on the part of the Trust that could be said to have extended over a period of time for the purpose of section 123. Instead, there had been a single act of victimisation which was out of time.

It therefore remitted the matter to the same tribunal to decide if time should be extended on the basis that it would be just and equitable to do so.