Worcestershire Health and Care NHS Trust v Allen – demonstrating continuing discriminatory conduct

A recent Employment Appeal Tribunal (EAT) case of Worcestershire Health and Care NHS Trust v Allen focused on what is required to demonstrate continuing discriminatory conduct to ensure claims are pursued in time.

Worcestershire Health and Care NHS Trust v Allen: the case

Ms Allen was employed by Worcestershire Health and Care NHS Trust. The Trust undertook a reorganisation exercise and informed Ms Allen that her job would cease to exist. The Trust offered Ms Allen a role which was at a lower grade. Ms Allen rejected the role and went off sick.

Ms Allen was dismissed because of her ill-health absences. She subsequently brought a number of employment claims in regards to age and disability discrimination. The Tribunal upheld some of her claims.

Ms Allen succeeded on her claims for age and disability discrimination, which took into account disability-related absence. The Tribunal determined it was an act of discrimination because of something arising in consequence of disability under s15 of the Equality Act 2010 (EqA). The Tribunal also found that the decision by Ms Allen’s manager to tick a box on the medical referral form asking occupational health to comment on her ‘retirement due to ill health’ constituted age-related harassment under s26 EqA.

Under s123, only the dismissal, being the last incident, fell within the three-month time limit for the claim. The Tribunal considered whether the medical referral and the grievance formed part of a continuing course of conduct with the dismissal so that the time limit ran from the date of the last incident in accordance with s123(3).

The Tribunal decided it had jurisdiction to hear the complaints because the three incidents were intrinsically linked as they arose from the Trust’s reorganisation. The Trust appealed against the Tribunal’s finding. They disputed that the grievance was predetermined and constituted age-related harassment. The Trust also disputed that the dismissal was part of a ‘conduct extending over a period’ linked to Ms Allen’s age and disability discrimination complaints for the purpose of s123(3).

Employment Appeal Tribunal Findings

The EAT allowed the appeal.

In relation to Ms Allen’s grievance, for the purposes of s26 EqA  ‘conduct’ must be ‘related to’ the protected characteristic. Therefore, whilst the grievance contained an allegation of age discrimination, the EAT had not identified that Ms Allen’s age was connected with the prejudgment. There was no use of ageist language or anything that connected the prejudgment of the grievance to Ms Allen’s age that could have resulted in a conclusion that the prejudgment involved age discrimination.

In relation to the second ground, the EAT stated that “for there to be conduct extending over a period there must have been ongoing discriminatory conduct. It is not enough that incidents are linked, and later events would not have occurred but for the earlier events, there must be something in the conduct that involves continuing discrimination.”

The Trust did not challenge the finding that the dismissal of Ms Allen was an act of discrimination because of “something arising” in consequence of disability (s15 EqA). The Court of Appeal determined in Commissioner of Police of the Metropolis v Hendricks 2003 ICR 530 (Brief 725), for there to be conduct extending over a period there must have been an ongoing situation or a continuing state of affairs that was discriminatory. Therefore, The EAT had to consider whether the finding made by the Tribunal that the dismissal was “part of conduct” extending over a period of time was linked to age discrimination.

The EAT stated that the person who was allegedly involved in age discrimination was not the same person involved in the dismissal. They concluded that “there was a substantial gap between these two events, and they involved different types of prohibited conduct, two different protected characteristics and decisions by different people.”

As the Tribunal did not identify anything that could establish what the continuing discriminatory conduct was, the EAT determined that the two complaints that succeeded did not form part of conduct extending over a period. Therefore, the EAT determined the time should not be extended.

Comments

This case confirms if there are a number of incidents over a period of time which it is alleged form part of a continuing course of discriminatory conduct , the conduct must link to an ongoing discrimination. It is not sufficient that the incidents link from a factual perspective. The events must have conduct involving continuing discrimination.

Further guidance and support

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