Fenn (t/a Powercutz) v Schreeve

For limitation under Equality Act 2010, conduct extending over a period may comprise an unbroken discriminatory state of affairs. Where a course of disability-related harassment leads to a complaint and then to a discriminatory dismissal, time runs from the dismissal. A claim presented within the statutory period after that dismissal is in time.

A finding that dismissal occurred because of disability can also support direct disability discrimination under section 13(1), where the employee would not have been dismissed but for the disability and the ensuing complaint about its treatment.

The claimant, a dyslexic barber, was summarily dismissed after complaining about repeated belittling comments concerning her dyslexia. The Employment Tribunal found direct disability discrimination, discrimination arising from disability and harassment, and awarded compensation.

The employer appealed on limitation in respect of the pre-dismissal harassment and on the sufficiency of the finding of direct discrimination under section 13. Limitation had been raised only in closing submissions below and the Tribunal had made no express finding on it. The central issues were whether the harassment claim was out of time and whether the facts supported the section 13 finding.

1. Appeal dismissed. Although the Employment Tribunal had not expressly addressed limitation, its factual findings established an unbroken course of unlawful conduct. The disability-related harassment led to the claimant’s complaint on 9 September, which led to her discriminatory dismissal on 23 September.

2. That sequence was a continuing discriminatory state of affairs of the kind described in Hendricks v Commissioner of Police for the Metropolis [2003] ICR 530. Under section 123(3)(a) of the Equality Act 2010, time therefore ran from 23 September. The claim, presented on 19 December, was in time. Remittal for an express ruling would inevitably have produced that result, so the Tribunal’s judgment was affirmed.

3. The section 13 finding was also permissible. The Tribunal found that the real reason for dismissal was the claimant’s disability and her complaint about the employer’s treatment of it, rather than the asserted misconduct. On those facts, she would not have been dismissed on the trumped-up conduct charge but for her dyslexia and the ensuing complaint. That supported direct disability discrimination under section 13(1).

4. There was no challenge to the separate finding under section 15, and success on section 13 would not have altered compensation. The respondent’s costs application was refused. The limitation ground was arguable and, if successful, could have reduced compensation for injury to feelings because the harassment course affected that assessment.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s judgment was affirmed.
• Employment Tribunal (Norwich): judgment dated 24 November 2014, with reasons dated 21 January 2015, upheld claims of direct disability discrimination, discrimination arising from disability and harassment, and awarded compensation.