The law allows claimants to bring a tribunal complaint outside the usual three-month time limit if they can show that it amounted to “conduct extending over a period”. In Moore Stephens LLP v Parr, the Employment Appeal Tribunal (EAT) held that the demotion of an equity partner was not a continuing act extending over a period, but rather a one-off decision with continuing consequences.
Mr Parr was an equity partner at Moore Stephens LLP, a firm of accountants. The members’ agreement set the normal retirement age for all partners at 60, although the managing partner could extend the date in the event that a relevant business need was identified.
Although Mr Parr’s normal retirement date should have been 30 April 2018, it was agreed in October 2017, in a deed which set out the terms of his continuing involvement, that he could stay on for two years beyond his normal retirement date but only as an ordinary (i.e. non-equity) partner. In September 2018, Mr Parr found out that the business was going to be sold, and in December, was told that he was not entitled, as a non-equity partner, to a share in the proceeds of the sale.
He brought a claim for direct age discrimination in January 2019, alleging losses in relation to the proceeds of sale as a result of his demotion from equity partner.
Although this was outside the three-month time limit for lodging a claim under section123(1)(a) of the Equality Act 2010, Mr Parr argued that the claim related to “conduct extending over a period” (also known as a continuing act) under section 123(3)(a) and had been ongoing when the claim was filed.
Section123(1)(a) states that claims have to be brought within three months starting with the date of the act to which the complaint relates.
Section 123(3)(a) states that for the purposes of this section “conduct extending over a period is to be treated as done at the end of the period”. In other words, time does not start to run until the discriminatory conduct comes to an end.
The judge found that, as a result of the rule in the partners’ agreement, Mr Parr was demoted on 30 April 2018, and was still in that demoted role when he presented his claim.
While this rule continued, she held that it was a continuing act and a continuing state of affairs which resulted in less favourable treatment because Mr Parr had reached the age of 60. As such, his claim was in time.
The company appealed, arguing that that claim was about the continuing consequences of a one-off act as opposed to the continuing operation of a discriminatory rule or practice.
Upholding the appeal, the EAT held that the effect of the change from equity to non-equity partner was a one-off and permanent alteration to Mr Parr’s status as a member of the LLP and the alleged losses derived from that event.
It also found that the rule in the partners’ agreement allowed for the exercise of discretion as to whether an equity partner could remain in their role after the age of 60, and that the decision not to allow Mr Parr to do so was not therefore the continuing application of a rule, but a one-off decision.
As the agreement which took effect on 30 April 2018 had fundamentally and permanently changed the nature of the relationship between Mr Parr and Moore Stephens LLP, the EAT concluded that it “is properly to be considered an act which had continuing consequences, rather than conduct which extended over a period. It was a specific one-off decision on the particular facts of the Claimant’s case, not the application of a rule in accordance with which multiple decisions were taken from time to time… or the continuous application of a policy, rule, scheme or practice…”.
There was therefore no “conduct extending over a period” in respect of the complaint beyond the date at which the change took effect for the purpose of section 123 of the Equality Act, and the claim was out of time.