Worcestershire Health and Care NHS Trust v Angela Allen

For harassment under section 26 of the Equality Act 2010, the conduct alleged must itself be related to the protected characteristic. Where the conduct is an inadequately handled discrimination grievance, the fact that the grievance alleged discrimination does not suffice. The tribunal must identify facts showing that the decision-maker’s conduct was related to that characteristic.

Conduct extending over a period under section 123 requires an ongoing discriminatory situation or continuing discriminatory state of affairs. A factual connection, such as a common restructuring process, does not convert isolated discriminatory acts into a continuing act.

The claimant brought numerous complaints of age and disability discrimination arising from a restructuring exercise, subsequent sickness absence and her dismissal. The Employment Tribunal upheld age-related harassment concerning an occupational-health referral and the predetermined outcome of her grievance. It also upheld disability discrimination in the dismissal.

The Trust appealed the grievance-harassment finding and the finding that the successful acts formed conduct extending over a period. The claimant cross-appealed against the dismissal of complaints concerning an accusation of breaching confidentiality and a reduction in her banding and hours.

The central issues were whether the grievance process was related to age for harassment purposes, whether the successful acts comprised a continuing discriminatory act, and whether the Tribunal had correctly applied the burden of proof.

1. Appeal allowed in part; cross-appeal dismissed. The Tribunal erred in upholding the age-related harassment complaint concerning the grievance. The EAT substituted a decision dismissing that complaint.

2. Section 26 of the Equality Act 2010 requires the alleged unwanted conduct to be related to the protected characteristic. It was insufficient that the grievance itself included an age-discrimination complaint. The relevant conduct was the grievance panel’s prejudgment of that grievance. The Tribunal had found that the panel’s approach was not because of age or disability and had identified no other fact connecting the prejudgment to age. There was no inherently age-related language. The harassment claim therefore could not succeed.

3. The Tribunal also erred in treating the age-related acts and the disability-related dismissal as conduct extending over a period under section 123. Applying Commissioner of Police of the Metropolis v Hendricks, [2002] EWCA Civ 1686, there must be continuing discriminatory conduct, rather than merely events connected by a restructuring process. The acts were separated in time, involved different decision-makers, different prohibited conduct and different protected characteristics. Those matters did not make a continuing act impossible, but the Tribunal had not identified a continuing discriminatory state of affairs.

4. The EAT substituted a finding that the two remaining successful complaints did not form part of conduct extending over a period. Whether time should nevertheless be extended on just and equitable grounds was remitted to the same Tribunal.

5. The cross-appeal failed. Read as a whole, the Tribunal had correctly applied the two-stage burden-of-proof approach. It permissibly found no facts capable of suggesting that the confidentiality accusation was age-related, and found that the employer had discharged the burden concerning the banding complaint.

• Employment Appeal Tribunal: Allowed the Trust’s appeal concerning grievance-related harassment and the continuing-act finding; substituted dismissal of the former complaint and remitted the just-and-equitable time issue. Dismissed the claimant’s cross-appeal.
• Employment Tribunal: Employment Judge Miller sitting with members, judgment dated 20 June 2022. Upheld limited complaints of age-related harassment and disability discrimination, while dismissing most complaints.