Pennine Acute Hospitals NHS Trust v. Power & Ors

For limitation purposes, the tribunal must identify the substance of the act complained of. It must distinguish that act from its continuing consequences. An alleged continuing act must be identified with sufficient clarity to determine when the limitation period began and ended.

The separate routes in regulation 42(4) are disjunctive. The fact that conduct involves a contractual term does not, without more, prevent it from being an act extending over a period under regulation 42(4)(b). Where the tribunal’s reasoning is opaque, fails to address the case advanced, or treats consequences or a mechanism as the act without identifying the underlying act, its decision cannot stand and should ordinarily be remitted for reconsideration.

The respondents, sterile services technicians employed by the appellant NHS Trust, brought age-discrimination complaints under the Employment Equality (Age) Regulations 2006. Following the introduction of Agenda for Change, the respondents were paid at a lower point within band 3 than older comparators. The transitional arrangements ended on 30 September 2007, but the claims were presented mainly in September 2008 and one in December 2008.

An Employment Judge held that the complaints were presented in time because they concerned an act extending over a period. The Trust appealed, arguing that the complaint concerned an earlier regrading or contractual decision whose later effect was merely consequential. The central issue was whether the Tribunal had correctly identified the act complained of and applied regulation 42(4).

1. Appeal allowed. The Employment Judge’s decision could not stand because the reasons did not clearly identify the act said to constitute a continuing act.
2. Regulation 42(4)(a), (b) and (c) of the Employment Equality (Age) Regulations 2006 operate disjunctively. There is no basis for reading paragraph (b) as excluding conduct involving reliance on, or insertion of, a contractual term. The relevant question is the act complained of in the particular claim.
3. The substance of the complaint matters more than its precise formulation. The Tribunal must examine the originating claim in a practical way and identify whether the complaint concerns, for example, an earlier appointment or grading decision, or a continuing failure to pay equal remuneration.
4. The continuing consequences of a discriminatory act do not themselves make the original act continuing. The Tribunal must distinguish the act from its consequences and determine when any continuing act ended.
5. The Tribunal’s reasoning was internally unclear. It variously described the complaint as concerning pay, a mechanism, or consequences of applying that mechanism. It did not adequately address the arguments based on the distinction between an act and its consequences. The reference to Hendricks did not resolve the issue because that authority concerned a series of physically distinct acts linked by a common hostility.
6. The case was remitted to the Employment Tribunal for reconsideration. It was not directed that the matter be heard by the same Employment Judge, although the EAT expressed confidence in that Judge’s professionalism.

• Employment Appeal Tribunal: allowed the Trust’s appeal against the Employment Tribunal’s decision and remitted the matter for reconsideration.