27.02.2018 Emma Edis
The case of Hale v Brighton & Sussex University Hospitals NHS Trust has held that the start of a disciplinary process can be the start of conduct extending over a period – i.e. a “continuing act” for the purposes of the Equality Act 2010.
Hale v Brighton & Sussex University Hospitals NHS Trust centred around a surgeon, against whom four junior doctors raised grievances concerning racially offensive remarks and harassment. Once the initial claim was underway, further complaints of racial discrimination and harassment were made against the surgeon.
Following disciplinary proceedings, the surgeon was dismissed after which he brought claims before the employment tribunal, including race discrimination.
The Employment Tribunal held that the surgeon’s claim was out of time, because it dated from the start of the disciplinary procedure. The usual time limit for bringing a claim in the employment tribunal for discrimination claims is 3 months from the date of the alleged discriminatory act – unless the claimant can show that there was a “continuing act”. The Employment Appeal Tribunal (EAT) disagreed, saying that there was a state of affairs that had started with the disciplinary procedure and continued until that procedure had been concluded, and therefore there was a continuing act and the surgeon’s claim was not out of time
This case demonstrates the need for employers to be careful when conducting disciplinary procedures that involve allegations of discrimination or harassment that this does not in fact lead to those alleged perpetrators being treated differently or subject to adverse treatment.