Network Rail Infrastucture Ltd v Matthew Mitchell

For limitation purposes, conduct extending over a period is determined by the substance of the complaint. The issue is whether the allegations disclose an ongoing discriminatory state of affairs, rather than a succession of isolated acts with continuing consequences.

At a preliminary hearing, where earlier allegations may be linked to a continuing act but that cannot fairly be resolved without fuller evidence, the tribunal may reserve the limitation issue for the merits hearing. It must, however, give sufficient reasons for doing so. A decision which does not explain why an issue is left unresolved is erroneous in law.

An employee with multiple sclerosis brought claims under sections 15 and 20 of the Equality Act 2010. He alleged that his line manager failed to accommodate his disability, imposed unsuitable performance expectations and made adverse comments. He was formally assigned Performance Improvement Required status in September 2011 and retired on ill-health grounds on 30 December 2011.

At a pre-hearing review, the Employment Judge held that the Performance Improvement Required status was continuing conduct and that the claims were not time-barred. The employer appealed only in relation to the section 15 claim, contending that the Judge had failed to determine, or adequately explain the treatment of, the earlier allegations concerning the line manager.

1. Appeal allowed. The Employment Judge made an error of law by failing to give adequate reasons for leaving unresolved the limitation status of allegations concerning conduct before September 2011. The reasons did not enable the employer or an appellate court to understand why those allegations were not ruled out as time-barred.

2. Under section 123 of the Equality Act 2010, a continuing act depends on the substance of the complaint. The correct distinction, following Hendricks v Commissioner of Police for the Metropolis [2002] EWCA Civ 1686, is between an ongoing discriminatory state of affairs and unconnected or isolated acts. A policy, rule or practice may demonstrate continuing conduct, but is not an exhaustive requirement.

3. The Employment Judge was entitled to treat the claimant's continued Performance Improvement Required status as an ongoing state of affairs until his employment ended. The resulting complaints under sections 15 and 20 were therefore in time insofar as they concerned that status.

4. The earlier alleged comments and treatment could not conclusively be classified at the pre-hearing stage. They might prove to be isolated, time-barred acts, or evidence of a continuing discriminatory state of affairs linked to the Performance Improvement Required status. The claimant bore the burden of proving the alleged incidents, their connection, and the continuing state of affairs. That issue required determination after fuller evidence.

5. Exercising its power under section 35 of the Employment Tribunals Act, the Appeal Tribunal substituted its own reasons and decision. There was no valid determination whether any act before September 2011 was in time or out of time; that question remained for the tribunal.

• Employment Appeal Tribunal: Allowed the employer's appeal for inadequate reasons, while substituting a decision which preserved the earlier allegations for determination after evidence.

• Employment Tribunal, Glasgow: At a pre-hearing review, held that Performance Improvement Required status was continuing conduct and that the disability-discrimination claims were not time-barred.