In the recent case of Ahmed v Capital Arches, the Employment Appeal Tribunal examined the distinction between discriminatory acts that occur as one off events with ongoing consequences, and those that form part of a continuing course of conduct extending over a period of time.
Background to the case
Mr Ahmed began his employment with Capital Arches in October 2018. He then went on long-term sick leave in June 2021, and while still absent from work, issued a claim in late October 2022. In his claim form, he alleged discrimination on the grounds of race, disability and religion or belief.
The allegations related to conduct by his line manager and colleagues in 2018. The claimant alleged that he received unwanted comments about his lack of participation in Muslim practices during Ramadan. After raising concerns with his line manager, Mr Ahmed alleged that he was reassigned to cleaning duties, which he argued was discriminatory.
What is the time limit to bring a discrimination claim?
Claims for discrimination should be brought within three months starting with the date of the act to which the complaint relates. An act occurring outside this time limit may still form the basis of the claim if it is part of “conduct extending over a period”. In this instance, the time starts running at the end of that period.
Employment Tribunals have discretion to extend such time limits for bringing discrimination claims, where they consider it just and equitable to do so.
One-off act or continuing act?
Case law establishes that there is a distinction between discriminatory conduct extending over a period of time, and a one-off act with continuing consequences.
In this case, the EAT held that the reallocation of Mr Ahmed’s duties to cleaning duties did not constitute conduct extending over a period, and instead this was a discrete decision or act with continuing consequences. It was held that time ran from the date he was moved to cleaning duties, being in October 2018. Therefore, his claim was brought almost four years after the expiry of the primary limitation period.
When considering whether it was just and equitable to allow Mr Ahmed’s claim to proceed, the Tribunal concluded that doing so would unfairly prejudice the employer. The events in question dated back more than five years, and many allegations related to verbal conversations from July 2018 involving former colleagues. A number of these individuals had since left the business, making it difficult to locate and secure their cooperation as witnesses. Without their evidence, it would be incredibly difficult for the employer to answer the allegations made against them. The Tribunal found that the passage of time had likely affected their memory and as a result refused to extend the time limit.
The EAT upheld this decision to dismiss, confirming that the alleged acts did not amount to continuing conduct and that it was not just and equitable to extend the time limit.
Key takeaways
This case illustrates the important distinction between a one-off discriminatory act with lasting consequences and conduct that continues over time. It also reinforces the Tribunal’s approach to the ‘just and equitable’ exception, particularly the need to consider potential prejudice to the employer. In assessing whether to extend time limits, Tribunals will examine the reasons for the claimant’s delay, the availability and reliability of evidence and practical difficulties faced by the employer in defending historic allegations.