A female art teacher and deputy department head applied in 1975 to be department head at her school. In September a man was appointed instead. The 1975 Act came into force on 29th December. On 1st January 1996 she complained to the Tribunal on the basis that by appointing a man the employers discriminated against her by reason of her sex contrary to Sections 1(1)(a), 4(1) and 6(1)(c) and (2)(a) of the Act.
Held: Bristow J asked: ‘Was the discrimination a single act, or an `act extending over a period,’ a continuous act?’ and answered: ‘There is nothing in the definition section of the Sex Discrimination Act 1975 or the sections to which that refers to require us to give any other than the ordinary common sense meaning to the provisions of the Act. The applicant’s complaint here is that by not appointing her, and by appointing a man with lesser qualifications, the employers have unlawfully discriminated against her. She herself has in our judgment given the right definition of the `act of discrimination’ of which she complained to the tribunal under section 63(1).
Like any other discrimination by act or omission, the failure to appoint her, and the appointment of him, must have continuing consequences. She is not head of the department; he has been ever since October 13, 1975. But it is the consequences of the appointment which are the continuing element in the situation, not the appointment itself.
That there may be discrimination by an act `extending over a period,’ that is, a continuing act, is clear from section 76 (6) (b). This provides that for the purpose of calculating the period within which a complaint must be presented to the industrial tribunal `any act extending over a period shall be treated as done at the end of that period.’ An illustration of what the legislature had in mind as an act extending over a period can be seen in the provisions of section 6 (1), which makes it: `unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman – (a) in the arrangements he makes for the purpose of determining who should be offered that employment . .’
So, if the employers operated a rule that the position of head of department was open to men only, for as long as the rule was in operation there would be a continuing discrimination and anyone considering herself to have been discriminated against because of the rule would have three months from the time when the rule was abrogated within which to bring the complaint. In contrast, in the applicant’s case clearly the time runs from the date of appointment of her male rival. There was no continuing rule which prevented her appointment. It is the omission to appoint her and the appointment of him which is the subject of her complaint.’
Judges:
Bristow J
Citations:
[1977] ICR 308
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Cast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 05 May 2022; Ref: scu.282643