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The Employment Appeal Tribunal (EAT) has held in Hale v Brighton & Sussex University Hospitals NHS Trust that the commencement of a disciplinary process can be the start of conduct extending over a period under section 123 of the Equality Act 2010.

Mr Hale is a surgeon. He had line management responsibility for a number of junior doctors, four of whom (three being Pakistani and the fourth Indian) raised grievances around racially offensive remarks and harassment. The Trust commenced disciplinary proceedings which culminated in dismissal and Mr Hale brought various claims including one for race discrimination (the complaints made against him were investigated, while his complaints about the remarks made to him such as "racism and slavery are gone" and "we are used just like slaves" which had, what he deemed to be racial overtones, were not).

The tribunal held that the claim dating from the instigation of the disciplinary was a one-off act and was out of time, but the EAT disagreed. It held that the Trust had created a state of affairs which commenced with instigation of the disciplinary and continued until the disciplinary process concluded and therefore the claim was in time. It held that otherwise time would begin to run as soon as each step was taken under a procedure which would mean that an employee would have to lodge a claim after each stage unless they could be confident that time would be extended on just and equitable grounds. As disciplinary procedures in some employment contexts (including the medical profession) can take many months, if not years, to complete this would impose an unnecessary burden on claimants.

Take note: It follows from the decision in Hale that where a claim stems from matters which arise while disciplinary proceedings are ongoing, they are likely to form continuing acts for the purpose of any discrimination claims until the disciplinary process has ended.

This article is taken from HR Law March 2018.