Worcestershire Health and Care NHS Trust v Angela Allen [2024] EAT 40
The Employment Appeal Tribunal (“EAT”) has allowed an appeal against the Employment Tribunal’s (“ET”) ruling that the Claimant’s allegations of age harassment and disability discrimination were “conduct extending over a period” for the purpose of determining whether the Claimant’s claims in respect of those allegations were brought in time.
The Respondent conducted a restructuring exercise which resulted in the Claimant’s role being at risk of redundancy. The Claimant went off sick and was subsequently dismissed, purportedly due to sickness-related absence. She brought a number of claims before the ET, including for age and disability related discrimination. She claimed (inter alia) that the Respondent’s treatment of a grievance raised about her redundancy and an occupational health referral which asked the medical adviser to comment on her “retirement due to ill health” constituted acts of age-related harassment contrary to the Equality Act 2010 (“EqA”), and that her dismissal was discrimination because of something arising in consequence of disability, also contrary to the EqA.
The ET upheld these claims, finding that although only the dismissal fell within the three-month limitation period for bringing them, the two instances of age-related harassment and the discriminatory dismissal were “conduct extending over a period”, so the limitation period ran from the date of the last incident. The ET held that the incidents all related to the Respondent’s change management process and proposed removal of the Claimant’s job and therefore were intrinsically linked with each other.
On appeal, the EAT held that for conduct to have extended over a period of time, it had to involve ongoing discriminatory conduct. It was not sufficient that certain incidents had a link, and that the later events would not have occurred but for the prior events. In this case, different individuals were involved in the alleged age discrimination and the dismissal, and there was a “substantial gap” between the events. Although it may be possible for a conduct extending over a period to include different types of discrimination and/or relate to different protected characteristics, the events found by the ET to form a continuing act in this case involved “different types of prohibited conduct, two different protected characteristics and decisions by different people”, and the ET had failed to identify what the continuing discriminatory conduct had been. In light of this, the EAT overturned the ET’s finding that there was a continuing act of discrimination.
This case demonstrates that a number of acts of discrimination over time may not always amount to “conduct extending over a period” for the purposes of determining whether a claim has been brought within the statutory limitation period. There must be something in the conduct which involves continuing discrimination as opposed to a succession of unconnected or isolated specific acts. Careful factual analysis is required to determine this.