Moseka v Sheffield Teaching Hospital NHS Foundation Trust

For limitation purposes, a claimant must show a properly arguable factual basis for treating alleged discriminatory incidents as an ongoing situation or continuing state of affairs. A common policy, rule or practice may supply the necessary link, but those labels are illustrative rather than exhaustive.

Separate and isolated acts do not become conduct extending over a period merely because a grievance is later pursued about them. A grievance process may itself form part of an ongoing situation, but this depends on the facts. A failure to make reasonable adjustments is ordinarily an omission whose time consequences must be assessed as such.

The claimant presented a discrimination claim concerning incidents from 2004 to December 2012. At a preliminary hearing, the Employment Tribunal held that most complaints were out of time. It allowed complaints concerning non-payment for two days in September 2012 and delay in completing a grievance and bullying-and-harassment procedure to proceed.

The claimant appealed on the basis that the earlier matters, the handling of her grievances and her reasonable-adjustment complaints formed conduct extending over a period under section 123 of the Equality Act 2010. The central issue was whether the Employment Judge had erred in finding no continuing act or state of affairs.

1. Appeal allowed to a limited extent. The Employment Judge was entitled to find that the pleaded historical complaints did not disclose a sufficiently linked continuing discriminatory state of affairs. The appeal otherwise failed.

2. The authorities require attention to the substance of the allegations. The question is whether the employer was responsible for an ongoing situation, as distinct from a succession of isolated acts. The claimant must provide a prima facie or reasonably arguable factual basis for the alleged connection: Hendricks, Ma, Lyfar and Aziz. On the evidence before the Employment Judge, the conclusion that there was no link was open to him.

3. A later grievance does not, without more, make the incidents complained of and the subsequent grievance process one continuing course of conduct. A grievance can on appropriate facts form part of an ongoing situation, as recognised in Bahous. Here, however, the later handling of a grievance did not connect the earlier incidents with the relevant period.

4. The 2006 failure to record an accident was an omission followed by a remedial step in 2013. That did not amount to a continuing discriminatory state of affairs. Likewise, treatment by a line manager in 2009 and 2010 could potentially have formed a course of conduct during that period, but the later grievance process did not extend it. Applying Matuszowicz, the Employment Judge made no error in his treatment of the reasonable-adjustment complaint as pleaded.

5. The Employment Judge did err in restricting the live complaint about delay in completing the combined Stage 4 appeal and bullying-and-harassment procedure to race discrimination. The case-management order had not confined that complaint to a particular protected characteristic. Since that complaint was allowed to proceed, it should not have been limited in that way. The appeal was allowed only to restore that aspect of the claim.

• Employment Appeal Tribunal: allowed the appeal only insofar as the Employment Tribunal had limited the live grievance-delay complaint to race discrimination.
• Employment Tribunal, Sheffield: at a preliminary hearing on 12 August 2013, held most complaints out of time and declined to extend time; it allowed limited complaints concerning September 2012 non-payment and grievance-procedure delay to proceed.