Hale v Brighton and Sussex University Hospitals NHS Trust

A discriminatory decision to begin disciplinary proceedings may create an ongoing state of affairs, rather than a completed act with continuing consequences, where the employee remains subject to further procedural steps until the process ends. Such a complaint can therefore be an act extending over a period for section 123 of the Equality Act 2010.

A tribunal may divide a broadly pleaded complaint into sensible sub-issues, but must retain the substance of the complaint. A purported distinction between comparators is not material where it results directly from an earlier discriminatory investigation and may taint the later decision.

For misconduct dismissal, the Burchell inquiry remains directed to the employer's genuine belief, reasonable grounds and reasonable investigation, within the range of reasonable responses.

The claimant, a consultant surgeon, was summarily dismissed after a disciplinary process concerning racially offensive and derogatory remarks made following a contentious departmental meeting. He alleged direct race discrimination because complaints which he made against three junior doctors were not pursued through the same process. He also brought unfair and wrongful dismissal claims.

The Employment Tribunal found that the decision to start the disciplinary process was discriminatory, but held that complaint out of time as a one-off act. It rejected the discrimination claim concerning the later disciplinary hearing and dismissal, and dismissed the unfair and wrongful dismissal claims.

The claimant appealed on limitation, comparator, dismissal and contractual issues. The respondent cross-appealed against the finding of discrimination at the initiation stage. The central issue was whether commencing disciplinary proceedings created an act extending over a period and whether later procedural decisions remained affected by the initial discrimination.

1. The appeal was allowed in part and the cross-appeal was dismissed. The Tribunal erred in treating its discriminatory decision to initiate disciplinary proceedings as a completed one-off act. Once the process was initiated, the claimant was subject to an ongoing state of affairs, involving further procedural steps, until its conclusion. That was capable of being an act extending over a period for section 123 of the Equality Act 2010. The claim concerning initiation was therefore in time.

2. The Tribunal was entitled to unpack the broadly agreed issue into decisions to initiate proceedings, require attendance at a disciplinary hearing, and dismiss. That sensible case-management analysis could not, however, displace the substance of the pleaded complaint that the claimant had been subjected to a disciplinary process culminating in dismissal.

3. The Tribunal's conclusion that the junior doctors ceased to be appropriate comparators at the disciplinary-hearing stage was internally inconsistent. The asserted difference, namely that they had no case to answer, could have resulted from the discriminatory initial handling of the claimant's complaint. The initial decision-maker had prematurely discounted that complaint, failed to expand the investigator's terms of reference, and was involved in both decisions. The later decision was therefore potentially tainted and required reconsideration.

4. The dismissal itself was not shown to be direct race discrimination. The dismissing officer conducted his own assessment of the charges. His decision reflected the claimant's seniority, the context, and the proved conduct. A non-white senior clinician in materially similar circumstances could properly have been dismissed.

5. The Tribunal did not err in dismissing the unfair dismissal claim. Although it did not separately state every limb of British Home Stores Ltd v Burchell, [1980] ICR 303, its reasoning showed that it considered whether the employer had reasonable grounds, following a reasonable investigation, for its genuine belief in misconduct. It was not required to decide for itself whether the remarks amounted to gross misconduct.

6. The alternative just-and-equitable limitation ground would have failed. The Tribunal had considered both the claimant's well-founded claim and the absence of prejudice to the respondent, but was entitled to attach decisive weight to the absence of an explanation for the delay. Its brief treatment of wrongful dismissal, adopting its detailed conclusions that the conduct was gross misconduct, disclosed no error of law.

• Employment Appeal Tribunal: Appeal allowed on grounds 1, 3 and 5. The remaining grounds failed. The respondent's cross-appeal was dismissed.
• Employment Tribunal (London South): Dismissed the claimant's race discrimination, unfair dismissal and wrongful dismissal claims.