Richman v Knowsley Metropolitan Borough Council

For time-limit purposes under Equality Act 2010, an act extending over a period is not confined to a policy, rule or practice. The inquiry is whether the complaints disclose an ongoing discriminatory situation or continuing state of affairs, rather than separate and unconnected acts.

An employer's continuing disciplinary process may constitute such an act. Further, where an employer genuinely reviews and reconsiders an earlier decision, time runs from the reconsidered decision. In exercising the just and equitable extension, a tribunal must identify the relevant dates and assess the relevant factors in their full context.

The disabled Claimant alleged disability discrimination arising principally from the Respondent's decision to pursue disciplinary proceedings after an incident said to have been caused by his bipolar condition.

At a Liverpool Employment Tribunal hearing, after the Claimant had closed his case, the Employment Judge raised time bar. The Tribunal held that the claim presented on 13 December 2011 was out of time and declined a just and equitable extension. It treated the complaints as outside time because they did not implement a policy, rule or practice.

The Claimant appealed. The central issue was whether the disciplinary process was a continuing act, or alternatively whether later reconsiderations or the just and equitable jurisdiction made the claim timely.

1. Appeal allowed. The Employment Tribunal adopted an unlawfully narrow approach by treating a policy, rule or practice as a necessary condition of an act extending over a period. Following Hendricks, the issue was whether the incidents were linked and evidenced a continuing discriminatory state of affairs, as distinct from isolated acts ([2003] IRLR 96).

2. On the undisputed chronology, there was only one permissible conclusion: the disciplinary process was a continuing act. Throughout 2011 the Respondent continued to investigate, address disclosure and occupational-health issues, deal with grievances, and seek resolution while maintaining the prospect of a disciplinary hearing. Its letter of 5 December 2011 expressly contemplated continuing the process. The claim was therefore in time.

3. Independently, the Respondent had repeatedly reviewed and reconsidered its original decision to use the disciplinary procedure. A genuine reconsideration prevented the decision from being treated as a single, completed act and caused time to run from the later decision. The latest reconsideration was on 5 December 2011, so the claim was timely on that basis also, consistently with Cass v Croydon College ([1998] EWCA Civ 498).

4. The Tribunal also erred in its alternative approach to a just and equitable extension under section 123. It had not identified the relevant starting date or analysed the relevant Keeble factors. Access to legal advice could be relevant, but it could not be treated in isolation. The EAT did not decide that discretionary issue because the claim was timely.

5. The case was remitted for a full hearing before a freshly constituted Employment Tribunal.

• Employment Appeal Tribunal: Allowed the Claimant's appeal in [2013] UKEAT 0047_13_0509. It held the claim in time and remitted it for a full hearing before a fresh Employment Tribunal.
• Employment Tribunal, Liverpool: Reasons sent on 20 November 2012. It held the disability-discrimination claim out of time and refused a just and equitable extension.