Philip Parr v MSR Partners LL (formerly Moore Stephens LLP)

For limitation under the Equality Act 2010, the court must distinguish a one-off discriminatory decision with continuing consequences from conduct extending over a period. A rule or policy that inevitably excludes a protected group, or continues to be applied to the claimant, may constitute continuing conduct. A discretionary provision is different where it is exercised once on the individual facts and permanently changes the claimant’s status. Continued contractual relations, continuing financial loss and the existence of an underlying default rule do not convert that decision into a continuing act. A demotion is not treated differently from dismissal merely because the relationship continues.

The appellant, an equity partner in an LLP, brought an age-discrimination claim after his equity status ended at the normal retirement date and he continued as an ordinary partner. The Employment Tribunal held that the respondents’ retirement arrangements amounted to conduct extending over a period under section 123(3)(a) of the Equality Act 2010, so the claim was in time. The Employment Appeal Tribunal, in UKEAT/0238/20/OO, allowed the respondents’ appeal, held that the conduct ended on 30 April 2018 and remitted the claim for consideration of a just and equitable extension of time. The issue before the Court of Appeal was whether the default retirement provision, coupled with a discretion to extend equity partnership and the appellant’s continued partnership, made the alleged discrimination continuing conduct.

1. The appeal was dismissed. The claim was remitted to the Employment Tribunal to decide whether time should be extended on the just and equitable ground. There was no order as to costs, and permission to appeal to the Supreme Court was refused.
2. Under section 123 of the Equality Act 2010, the critical distinction is between a one-off decision and a continuing act or state of affairs. The court adopted the ratio of Barclays Bank plc v Kapur [1991] 2 AC 355. Requiring employees to work on less favourable pension terms can be continuing conduct, just as requiring lower current wages can be. That principle was contrasted with Sougrin v Haringey Health Authority [1992] ICR 650, where a refusal to upgrade was a once-for-all act and the resulting lower salary was only a continuing consequence.
3. The court must identify the specific act complained of. An absolute rule or policy which inevitably excludes a protected group may produce continuing conduct, as illustrated by Amies v Inner London Education Authority [1977] ICR 308, Calder v James Finlay Corporation Ltd [1989] ICR 157 and Rovenska v General Medical Council [1998] ICR 85. The position differs where a discretion is genuinely exercised once in the individual case.
4. Clause 29.2 provided a default retirement date, but clause 29.4 created a genuine discretion to extend equity partnership. That discretion had been exercised differently for other partners. The decision not to extend the appellant’s equity partnership, and the resulting De-Equitisation Agreement, was a one-off decision which permanently changed his status with effect from 30 April 2018. His continued contractual relationship and continuing losses were consequences of that decision. Clause 29.2 was no longer in action vis-à-vis him after that date. Seldon v Clarkson Wright & Jakes [2012] ICR 716 concerned justification and did not decide the continuing-act issue. The court also noted, obiter, the caution in Tilling v Whiteman [1980] AC 1 about preliminary points of law.

• Court of Appeal (Civil Division): in [2022] EWCA Civ 24, dismissed the appeal, remitted the claim for consideration of a just and equitable extension of time, made no order as to costs and refused permission to appeal to the Supreme Court.
• Employment Appeal Tribunal: in UKEAT/0238/20/OO, allowed the respondents’ appeal, held that there was no conduct extending over a period beyond 30 April 2018, and remitted the claim for consideration of the just and equitable ground.
• Employment Tribunal: at a preliminary hearing on 11 and 12 September 2019, held that the respondents’ conduct extended over a period under section 123(3)(a) of the Equality Act 2010 and that the claim was in time.