EAT Race Discrimination: Indirect – JURISDICTIONAL POINTS – Extension of time: just and equitable
Indirect race discrimination – claim in time – continuing act – section 123(3) Equality Act 2010 – just and equitable extension of time
The Respondent had operated an indirectly discriminatory policy of under-paying those with ’employability issues’ – effectively where it considered immigration issues might arise given an employee’s visa status. The ET had found this put those sharing the Claimant’s protected characteristic (he was an Indian national) at a disadvantage and also put him at a disadvantage. The Respondent did not challenge those findings but submitted that the Claimant was no longer disadvantaged by the policy after June 2013, when his pay was increased to the correct level after he had been granted a longer-term visa; the Claimant’s ET claim, lodged in September 2014 was therefore out of time. The ET disagreed, finding the Respondent had adjusted its policy when it told the Claimant – in January 2012 – that, once his ’employability’ was resolved, the earlier shortfall in pay would be made good. Its failure to make good on that promise meant there was a continuing act of indirect discrimination until the termination of the Claimant’s employment. The claim was therefore brought in time, alternatively it would have been just and equitable to extend time. The Respondent appealed.
Held: dismissing the appeal
The ET’s Reasons – as amplified under the Burns/Barke procedure – made clear that it had found that there was a continuing discriminatory policy. The Respondent’s policy, as amended in January 2012, continued to mean that the Claimant suffered from the underpayment in his salary because the Respondent failed to make good the short-fall and that was because of the initial (indirectly discriminatory) ’employability issues’. That thus remained the discriminatory application of the Respondent’s policy, of which the Claimant had complained. As it continued until the termination of the Claimant’s employment, his claim was presented in time.
In the alternative, the ET’s finding in this regard was relevant to its consideration as to what was just and equitable in terms of any extension of time. It had found that the Respondent had strung the Claimant along such that he had reasonably believed that it would make good the past short-fall in his pay but it had continued to fail to do so. This was a permissible finding on the ET’s part and a permissible exercise of its judicial discretion.
Eady QC HHJ
[2016] UKEAT 0275 – 15 – 3010
Bailii
England and Wales
Employment, Discrimination
Updated: 25 January 2022; Ref: scu.570980
