Comr of Police of the Metropolis v Hendricks

For discrimination time limits, an act extending over a period may comprise an ongoing discriminatory situation or continuing state of affairs. It need not take the form of a formally identifiable policy, rule, scheme, regime or practice. Those concepts are examples, not exhaustive requirements.

The tribunal must distinguish such a continuing state of affairs from a succession of isolated or unconnected acts, for which time runs separately. At a preliminary stage, allegations capable of showing linked discriminatory incidents may establish jurisdiction, although the claimant must prove the links at the substantive hearing. Absence from the workplace through sickness does not necessarily end continuing discrimination where the employment relationship persists.

A black female Metropolitan Police officer alleged nearly 100 instances of race and sex discrimination extending over approximately 11 years. She contended that the incidents, including acts and omissions during sick leave, formed a continuing discriminatory state of affairs for which the Commissioner was responsible.

The Employment Tribunal held preliminarily that it had jurisdiction because the allegations were capable of constituting an act extending over a period. The Employment Appeal Tribunal allowed the Commissioner's appeal, holding that the alleged policy or practice had not been defined with sufficient precision. The officer appealed.

The central issue was whether the allegations were capable of constituting an act extending over a period under the time-limit provisions of the Sex Discrimination Act 1975 and the Race Relations Act 1976, rather than a succession of isolated acts.

1. Appeal allowed unanimously. Lord Justice Mummery delivered the leading judgment. Lord Justice May and Lord Justice Judge agreed. The Employment Tribunal had made no error of law in deciding preliminarily that it had jurisdiction. Both originating applications were to proceed to a substantive hearing, subject to further directions.

2. An act extending over a period is not confined to a formally identifiable policy, rule, practice, scheme or regime. Those expressions in the authorities were examples. Treating them as exhaustive or constricting diverted attention from the statutory language. The correct focus was whether the complaints alleged an ongoing situation or continuing state of affairs for which the Commissioner was responsible, rather than a succession of isolated or unconnected acts.

3. The officer's allegations were capable of showing that numerous incidents were linked and evidenced a continuing discriminatory state of affairs. It was too early to conclude that the claims were out of time. At the substantive hearing, she would bear the burden of proving the incidents and their connection, whether directly or by inference from primary facts.

4. Sick leave and physical absence from the workplace did not necessarily terminate continuing discrimination. The officer remained in service and protected by Part II of the Sex Discrimination Act 1975 and the corresponding discrimination legislation. Her complaints included both contact and lack of contact during the continuing service relationship.

5. The court permitted withdrawal of the purported concession that no relevant discriminatory conduct had occurred during the three months before proceedings. A concession should ordinarily be withdrawn only in very special circumstances. Here it was recorded ambiguously and could not be reconciled with the tribunal's recognition that the officer alleged continuing recent treatment.

6. The court declined to determine at the preliminary stage whether the rule concerning a chief constable's liability in Liversidge defeated the claims. The officer alleged direct responsibility arising from the Commissioner's direction and control of the force. The relevant facts first had to be established. The possible effect of the Equal Treatment Directive on the sex discrimination claim also required consideration.

7. The tribunal was directed to manage the extensive claim actively. The parties should seek to agree issues and reduce the witnesses, documents and disputed allegations, concentrating on the most serious and more recent matters.

1. Court of Appeal: The officer's appeal was allowed unanimously. The Employment Tribunal's preliminary jurisdictional ruling was restored, and both applications were permitted to proceed.

2. Employment Appeal Tribunal: The Commissioner's appeal was allowed. The Appeal Tribunal held that the Employment Tribunal had not adequately identified the act extending over a period and had inferred an excessively generalised discriminatory policy.

3. Employment Tribunal: The tribunal unanimously held that it had jurisdiction to consider the sex and race discrimination complaints, including the complaint arising from the 1998 assault charge.