There are strict time limits for bringing discrimination claims.
In every case, an employment tribunal ‘shall not consider a complaint... unless it is presented to the tribunal before the end of... the period of three months beginning when the act complained of was done’.
Any act ‘extending over a period’ shall be treated as ‘done at the end of that period’.
A court or tribunal may nevertheless ‘consider any such complaint... which is out of time if in all the circumstance of the case it considers that it is just and equitable to do so’.
In Lyfar v Brighton and Sussex University Hospitals Trust, the Court of Appeal recently upheld tribunal and EAT decisions that the majority of a race discrimination claim could not be allowed to proceed because it was time barred.
The employee had filed her claim with the tribunal on 24 February 2005. It followed that it should not normally have been based on events occurring before 25 November 2004. The case concerned the way in which the employer had dealt with disciplinary proceedings against her after a complaint that she had bullied and harassed a fellow employee. All charges against her had been dismissed at a disciplinary hearing on 11 October 2004. She had then filed a grievance regarding the disciplinary process on 9 November. She had been informed of the outcome of that grievance on 20 January 2005.
The Court of Appeal followed the broad definition of a “continuing act” given in Hendricks v Commissioner of Police of the Metropolis. In that case Lord Justice Mummery had said that the numerous alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of ‘an act extending over a period’.
He rejected the idea that there was any need to show ‘institutional racism’, a ‘prevailing way of life’, a ‘generalised policy of discrimination’, or ‘climate’ or ‘culture’ of unlawful discrimination. In earlier cases, concepts of policy, rule, practice, scheme or regime had been given as examples of when an act extends over a period. However, ‘an act extending over a period’ may simply be a series of individual incidents provided that they were linked in some way.
The Court of Appeal in Lyfar decided that the tribunal had applied this test correctly. The steps in the disciplinary proceedings had amounted to a series of incidents but the tribunal had been satisfied that the disciplinary proceedings had terminated on 11 October 2004 and there was no “ongoing situation” thereafter that the claimant could rely on as being an “act extending over a period”. So all allegations relating to the conduct of the disciplinary proceedings were time-barred.
The Court of Appeal went on to consider whether or not the tribunal had been right not to extend time on the just and equitable basis. No explanation had been given for the claimant’s failure to present the claim form in time and this had weighed heavily with the tribunal in deciding not to exercise its discretion in her favour and allow her claim to proceed. The Court of Appeal agreed with this decision.
Points to note –
- A “continuing act” may be incidents of discrimination that are shown to be linked to one another, but once the ongoing situation created by the “continuing act” has come to an end, normal rules as to time limits apply.
- Tribunals will not consider it ‘just and equitable’ to extend time limits unless a reasonable explanation has been given as to why the claim was filed late.
- Time limits for bringing tribunal claims can be extended where the statutory dispute resolution procedures have been engaged but only where the employee has reasonable grounds for believing that a statutory procedure was being followed when the time limit expired.