The claimant, Ms Aziz, brought claims of race discrimination against the respondent (the FDA, her trade union) on the basis they had treated her unfavourably on racial grounds by way of their failure to assist with her legal proceedings and grievances against her employer, the Crown Prosecution Service (CPS), which had taken place over a number of years.
The claimant listed 76 individual acts of discrimination at the employment tribunal (ET) stage. A preliminary issue arose as to which acts were within time – that is, part of a continuing act or discriminatory state of discriminatory affairs.
The Court of Appeal (CA) dismissed the appeal and held that the ET was correct to let the last batch of alleged incidents proceed to hearing, and that there was no basis for concluding that incidents dating back to 1999 formed a continuous act stretching past 2006.
The ET had concluded that the only claim in time was a claim concerning the respondent’s delay in obtaining representation for the claimant’s remedies hearing for the proceedings against the CPS.
That decision had also been upheld by the Employment Appeal Tribunal.
On appeal, the claimant submitted that the ET should have found the earlier incidents part of a continuing act or omission. The CA rejected the claimant’s argument that, albeit the 76 alleged discriminatory acts were committed by different individuals on different dates between 1999 and 2008, they all amounted to the respondent’s continuing discriminatory stance against her.
The CA found the claimant’s dealings with the respondent fell into three defined periods:
1) (early 2002) the claimant asked the respondent to support her claim against the CPS
2) (July 2005) the claimant sought the respondent’s advice concerning the interpretation of the CPS disciplinary code
3) (December 2006) the claimant asked the respondent to represent her in the remedy stage of her claim against the CPS.
The CA analysed each alleged act and considered the three distinct periods – in doing so, it was able to confirm the ET had adopted the correct approach by concluding that the earlier incidents did not constitute an act extending over a period.
The CA affirmed the principle that in considering whether separate incidents formed part of “an act extending over a period” within the Race Relations Act 1976, one relevant, but not conclusive, factor was whether the same individuals or different individuals were involved in those incidents.
What you should do
In some circumstances, it is possible to challenge whether an employee’s discrimination claims are in time, particularly where the acts complained of can be properly separated into different issues and timeframes and took place over a lengthy period.
by Richard Ryan, associate, Helen Ward, associate, and Tori O’Neill, trainee solicitor, Addleshaw Goddard