Case update: Worcestershire Health and Care NHS Trust v Allen
The recent Employment Appeal Tribunal decision in the case of Worcestershire Health and Care NHS Trust v Allen has again brought into focus the consideration of grievances, in the context of discrimination in employment claims and what is required in order to demonstrate continuing discriminatory conduct, to ensure claims are pursued in time for the purposes of discrimination law.
Ms Allen was employed by the NHS Trust. The Trust undertook a restructuring exercise. As a result of the restructuring exercise, Ms Allen asserted that she had been discriminated due to her age and disability. She pursued a grievance process and events continued over a period of around 15 months.
Ms Allen became unwell as a result of matters and was eventually dismissed by the Trust because of her ill health absences. She subsequently brought an employment claim making complaints of age and disability discrimination.
Before the Employment Tribunal, Ms Allen succeeded in her claim that a grievance she submitted was given an outcome that was predetermined and constituted age-related harassment. She also succeeded on claims for discrimination on the grounds of age and disability.
The NHS Trust appealed the Employment Tribunal decision on 2 grounds: –
- The Trust disputed that the grievance was predetermined and constituted age-related harassment.
- The Trust disputed that the dismissal of Ms Allen was “part of conduct” extending over a period that was linked to her age and disability discrimination complaints.
In relation to the first ground of appeal, the Trust succeeded in its argument on that ground.
The Employment Appeal Tribunal determined that, whilst the grievance contained an allegation in general terms of age discrimination, the Employment Tribunal had not identified anything that connected Ms Allen’s age with the alleged prejudgment of the grievance. It was the alleged prejudgment of the grievance that needed to constitute the “conduct” that had to be “related to age”. The Employment Appeal Tribunal noted that the Employment Tribunal had not found any evidence, such as the use of ageist language, that could have resulted in a conclusion that the prejudgment of the grievance inherently involved age discrimination.
In relation to the second ground of appeal, the Trust did not challenge the finding that the dismissal of Ms Allen was an act of discrimination because of “something arising” in consequence of disability (Section 15 Equality Act 2010). The question that was to be considered by the Employment Appeal Tribunal in the second ground of appeal turned on whether the finding made by the Employment Tribunal that the dismissal was “part of conduct” extending over a period of time that was linked to age discrimination.
The Employment Appeal Tribunal, in relation to the second ground of appeal, found in favour of the Trust. They assessed the events leading up to the dismissal and stated that “for there to be conduct extending over a period there must have been ongoing discriminatory conduct. It is not enough that incidents are linked, and later events would not have occurred but for the earlier events, there must be something in the conduct that involves continuing discrimination.”
The Employment Appeal Tribunal considered the facts and noted that the person who was allegedly involved in age discrimination was not the same person involved in the dismissal. They concluded that “there was a substantial gap between these two events (the alleged age discrimination event and dismissal), and they involved different types of prohibited conduct, two different protected characteristics and decisions by different people.”
Accordingly, the Employment Appeal Tribunal found against Ms Allen in relation to the appeal grounds.
The case is one that confirms that, where grievances contain allegations of discrimination, they need to have supportive evidence and show nexus to the discrimination alleged. In addition, where events span a period of time, there must be a kernel in the conduct that involves continuing discrimination.
Author: Damian Kelly, employment.
