[Thanks to Bruno Gil, pupil barrister of Old Square Chambers for preparing this case summary]
Can an employment tribunal consider complaints of different types of discriminatory conduct when considering whether there is an act extending over a period?
Potentially yes, held the EAT in Robinson v RSCH.
The Claimant, a nurse with a disability, was dismissed following a capability hearing. She brought a claim complaining of various acts of direct disability discrimination, disability related harassment and a failure to make reasonable adjustments. These complaints related to various acts of the Trust in 2011/12 and then her dismissal in 2013.
The employment tribunal, when determining whether there was a continuing act in time, considered each of the causes of action (direct discrimination, harassment and failure to make reasonable adjustments) separately. It held on the facts that the dismissal was not part of a continuing act and that the claims were accordingly out of time.
The Claimant’s primary case on appeal was that the employment tribunal had erred in considering each complaint separately when determining whether there was a continuing act of discrimination. On the facts, the EAT held that the employment tribunal was entitled to form the view that there was no link between the earlier acts and the decision to dismiss, so that the point was academic.
The EAT went on to state (obiter), however, that when considering whether a Claimant has made out a prima facie case that the acts of which she complains amount to conduct extending over a period, it might be appropriate to allow complaints of different types of discrimination to be taken together as constituting conduct extending over a period. The example given was where there are complaints of 1) direct discrimination for putting the Claimant on specific, undesirable shifts; and 2) a failure to make reasonable adjustments to put the Claimant on different shifts.
Can an employment tribunal consider complaints of different types of discriminatory conduct when considering whether there is an act extending over a period?
Potentially yes, held the EAT in Robinson v RSCH.
The Claimant, a nurse with a disability, was dismissed following a capability hearing. She brought a claim complaining of various acts of direct disability discrimination, disability related harassment and a failure to make reasonable adjustments. These complaints related to various acts of the Trust in 2011/12 and then her dismissal in 2013.
The employment tribunal, when determining whether there was a continuing act in time, considered each of the causes of action (direct discrimination, harassment and failure to make reasonable adjustments) separately. It held on the facts that the dismissal was not part of a continuing act and that the claims were accordingly out of time.
The Claimant’s primary case on appeal was that the employment tribunal had erred in considering each complaint separately when determining whether there was a continuing act of discrimination. On the facts, the EAT held that the employment tribunal was entitled to form the view that there was no link between the earlier acts and the decision to dismiss, so that the point was academic.
The EAT went on to state (obiter), however, that when considering whether a Claimant has made out a prima facie case that the acts of which she complains amount to conduct extending over a period, it might be appropriate to allow complaints of different types of discrimination to be taken together as constituting conduct extending over a period. The example given was where there are complaints of 1) direct discrimination for putting the Claimant on specific, undesirable shifts; and 2) a failure to make reasonable adjustments to put the Claimant on different shifts.
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