South Western Ambulance Service NHS Foundation Trust v King (EXTENSION OF TIME)

At a final hearing, conduct extending over a period under section 123 of the Equality Act 2010 requires proven constituent acts of discrimination over time. Alleged acts which are not established, or are not discriminatory, cannot evidence a continuing discriminatory state of affairs. In particular, at least the final constituent act relied on to enlarge time must be both in time and actionable.

Where an Employment Tribunal has not decided an alternative just and equitable extension issue, the Employment Appeal Tribunal must remit it if the answer depends upon the Tribunal’s discretionary assessment of the existing material and is not inevitable.

The claimant brought claims for constructive unfair dismissal and victimisation after resigning from the Trust. She relied on an external grievance report, the rejection of her grievance and appeal, and other matters as detriments following protected acts.

The Employment Tribunal found that only the grievance report was a victimising detriment. It nevertheless treated the report and later unsuccessful allegations as conduct extending over a period, so that the report claim was in time. It dismissed the constructive dismissal claim.

The Trust appealed. The central issue was whether alleged later acts which were not found to be discriminatory could form part of conduct extending over a period under section 123 of the Equality Act 2010.

1. Appeal allowed. The Tribunal erred in finding conduct extending over a period. The EAT substituted a finding that there was no such conduct and remitted the question whether time should be extended on just and equitable grounds.

2. Section 123 treats conduct extending over a period as occurring at the end of that period. Following Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530, a continuing act may arise from a discriminatory policy, rule or practice, or from linked discriminatory acts evidencing a continuing discriminatory state of affairs. The inquiry differs at a preliminary jurisdictional stage, where a prima facie case may suffice, and after a full hearing based on concluded findings.

3. After a final hearing, each alleged constituent act which is relied upon to establish the continuing state of affairs must itself be proved to be discriminatory. A state of affairs cannot be treated as an unanchored, overarching source of discrimination. Where only the first of a number of alleged acts is discriminatory, there is one isolated act rather than conduct extending over the whole period. At least the final constituent act relied upon to enlarge time must be both in time and actionable.

4. The sole established act, the grievance report, was therefore out of time. The Tribunal had not determined the pleaded alternative case for a just and equitable extension. That discretionary issue could not be resolved inevitably by the EAT. The Tribunal could assess the existing evidential material, including appropriate inferences from pleadings and documents, despite the absence of direct evidence specifically addressing delay. The remittal was not to permit further evidence.

• Employment Appeal Tribunal: Allowed the Trust’s appeal, substituted a finding that there was no conduct extending over a period, and remitted the just and equitable extension issue.
• Employment Tribunal (Exeter): Found one act of victimisation in the grievance report, held the victimisation claim in time as part of a continuing course of conduct, and dismissed the constructive unfair dismissal claim.