April 30, 2018

Disciplinary Process: One-off Act or Ongoing Act in Discrimination Context?

In Hale v Brighton & Sussex University Hospitals NHS Trust UKEAT/0342/16/LA the Employment Appeal Tribunal (EAT) considered whether a disciplinary process was a one-off act or an ongoing act in the context of U.K. discrimination law.

Four junior doctors raised a collective grievance relating to racial harassment against Mr Hale, a consultant doctor with an NHS Trust (the Trust), which resulted in a disciplinary process being instigated against him. Mr Hale himself then lodged a grievance relating to racial harassment against three of the junior doctors. Following the disciplinary procedures against him, Mr Hale’s employment was terminated.

Mr Hale brought a race discrimination claim and the first question to be determined was whether or not his claim had been brought out of time: it would have been brought out of time if the instigation of the disciplinary process was considered to be a one-off act triggering the limitation period; however, the claim would have been brought in time if the disciplinary process was considered as an ongoing act, the conclusion of which triggered the limitation period. The EAT found that by taking the decision to instigate a disciplinary process, the Trust had “created a state of affairs that would continue until the conclusion of the disciplinary process”. The disciplinary process was therefore an ongoing act and the claim was brought in time.

Although this case does not advance new law, it provides helpful clarification surrounding the limitation periods in the context of discrimination claims.

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