Discriminatory acts or omissions may be seen as one-off occurrences or as a sequence giving rise to a continuing discriminatory state of affairs. As an Employment Appeal Tribunal (EAT) ruling showed, distinction can be critical to determining whether complaints have been lodged within the statutory time limit (Sridhar v Kingston Hospital NHS Foundation Trust).
The case concerned a British doctor of Indian origin who claimed to have been the subject of direct and indirect race discrimination extending over a period of more than 10 years. His complaints against the NHS trust for which he still worked ranged from a delay in providing him with an employment contract to requiring him to cover junior doctors' shifts. He asserted that the various discriminatory acts and omissions that he endured had thwarted his chances of becoming a consultant.
Following a preliminary hearing, a number of his complaints were struck out by an Employment Tribunal (ET) on the basis that they had been lodged outside the three-month limitation period which applies to discrimination claims by virtue of Section 123 of the Equality Act 2010. After the trust argued that it had been prejudiced by the delay, and characterised the relevant complaints as historical, the ET found that it would not be just and appropriate to extend the time limit.
The EAT upheld the doctor's challenge to that outcome and found that striking out the relevant complaints was premature and that it amounted to an error of law. The ET had failed to properly consider whether he had an arguable case that the alleged acts and omissions were all part and parcel of a continuing discriminatory state of affairs that had extended to a time which fell within the limitation period. The EAT directed the same ET to re-determine the limitation issue at the end of the full merits hearing of the doctor's case, after hearing all the evidence.
Contact Emma Louise Hewitt e.hewitt@sydneymitchell.co.uk or a member of the employment law team for advice on any discrimination issue.
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