Cast v Croydon College

For discrimination limitation purposes, an employer makes a fresh actionable decision when it genuinely reconsiders and again refuses a request. Merely referring the employee to an earlier decision does not restart time.

A discriminatory policy, rule or practice may constitute an act extending over a period. It need not be formal, written or generally applicable and may relate only to a particular post. Its continuing consequences must be distinguished from its continuing operation.

Indirect discrimination is complete when a requirement is applied to a woman to her detriment because she cannot comply with it. The later consequences of that application, including resignation, do not themselves postpone completion of the discriminatory act.

Mrs Cast sought to return from maternity leave as a part-time employee or job-sharer. Croydon College refused her request before her leave and reconsidered and refused it again after her return. She resigned and presented a complaint alleging indirect sex discrimination and constructive dismissal.

The Industrial Tribunal held that the only relevant act was the first refusal in March 1992. It found the complaint substantially out of time and declined to extend time. The Employment Appeal Tribunal dismissed her appeal in a decision reported at [1997] IRLR 14.

The Court of Appeal considered whether the later refusals were fresh decisions, whether the College maintained a policy constituting an act extending over a period under section 76(6)(b) of the Sex Discrimination Act 1975, and whether limitation instead ran from the termination of employment.

1. Appeal allowed unanimously. Lord Justice Auld delivered the judgment. Lord Justice Robert Walker and Lord Justice Otton agreed. The Industrial Tribunal and Employment Appeal Tribunal had wrongly treated the first refusal as the only potentially discriminatory act.

2. A further refusal can be a fresh act of discrimination even where the request contains no new material and no discriminatory policy is alleged. The decisive question is whether the employer reconsidered the matter and made another decision. If it did, time begins again. A mere reference back to an earlier decision creates no new limitation period.

3. The Industrial Tribunal's findings showed that the College reconsidered and looked at the request again in 1993. It therefore erred by failing to consider whether those refusals were separate acts. The last such refusal occurred on 10 May 1993, three days outside the three-month period. Had the continuing-act ground failed, that short delay would have required reconsideration of the just and equitable discretion under section 76(5) of the Sex Discrimination Act 1975.

4. The claim nevertheless concerned an act extending over a period under section 76(6)(b). A relevant policy, rule or practice need not be formal, written or imposed throughout an organisation. It may be confined to a particular post. The repeated decisions and the College's established stance that the Information Centre Manager must work full-time disclosed a policy which remained applicable to Mrs Cast until her employment ended. The act was therefore treated as done at that time, making the complaint timely.

5. A one-off act does not become a continuing act merely because its consequences persist. Nor could limitation be postponed simply by characterising resignation as the discriminatory act. For indirect discrimination, the relevant act is the application of a requirement which is detrimental because the woman cannot comply with it, whether or not the requirement has yet been invoked or enforced.

6. The orders below were set aside. The complaint was remitted to an Industrial Tribunal for determination on its merits, with the appellant receiving her costs.

1. Court of Appeal: Allowed the appeal unanimously, set aside the orders below and remitted the complaint for determination on its merits.

2. Employment Appeal Tribunal: Dismissed the employee's appeal on 28 June 1996, holding that the first refusal was the relevant act and upholding the refusal to extend time. The decision was reported at [1997] IRLR 14.

3. Industrial Tribunal: Held on a preliminary issue that the complaint concerned a single refusal made in March 1992, was presented outside the three-month period and should not receive a just and equitable extension.