The Basildon Academies Trust v Polius-Curran

An appointment decision is a one-off act with continuing consequences, rather than a continuing discriminatory act, where the employer neither repeats nor maintains the discriminatory decision. A claimant’s continuing complaints and an employer’s failure later to regularise the appointment do not convert it into an act extending over a period for section 123 of the Equality Act 2010.

When deciding whether to extend time on a just and equitable basis, a tribunal must address the relevant circumstances and applicable guidance. At the second stage of the Igen burden-of-proof enquiry, it must consider the employer’s actual explanation for the treatment. It is insufficient to consider only a different or partial explanation.

The claimant, a Black British Caribbean maths teacher, brought claims including direct race discrimination after the respondent appointed a White English colleague as Head of Department. The Employment Tribunal dismissed all but the complaint concerning that appointment. It held that the complaint was a continuing act and, alternatively, extended time on a just and equitable basis. It also found direct discrimination.

The respondent appealed the limitation ruling and the substantive finding. The central issues were whether the appointment was a continuing act, whether time should be extended, and whether the Tribunal correctly applied the second stage of the burden-of-proof enquiry.

1. Appeal allowed. The appointment was completed on 1 September 2012, when the colleague was appointed substantively. It was a one-off appointment decision with continuing consequences, not conduct extending over a period under section 123(3) of the Equality Act 2010. The claimant’s continuing objections and the absence of a later recruitment process did not create a continuing act. The complaint was therefore presented out of time.

2. The Tribunal’s alternative extension of time under section 123(1)(b) could not stand. Its stated concern about the importance of the issue did not show that it had considered the relevant circumstances. Although the Keeble factors need not be followed slavishly, the Tribunal had to apply its mind to them and to the applicable appellate guidance. The Employment Appeal Tribunal could not itself decide whether an extension was just and equitable, so that issue was remitted.

3. The Tribunal was entitled to find a prima facie case at stage 1 of the Igen enquiry. Its findings, including the “tap on the shoulder” evidence, provided more than mere difference of race and treatment.

4. However, the Tribunal erred at stage 2. It failed to consider the respondent’s actual explanation that the claimant’s five-year CV gap was the reason she was not appointed. Its consideration of that gap only in relation to experience as a maths teacher did not address whether it explained the comparative appointment decision.

5. The limitation and direct-discrimination issues concerning the appointment were remitted to the same Tribunal, if practicable. The remission was narrow, there was no issue of bias, and the Tribunal had already resolved the remaining issues.

• Employment Appeal Tribunal: allowed the respondent’s appeal and remitted the limitation and substantive discrimination issues.
• Employment Tribunal: by a reserved judgment promulgated on 16 October 2014, dismissed the claimant’s race discrimination and harassment claims save for the finding of direct discrimination concerning the Head of Department appointment.