can a Claimant rely on a change of status as a “continuing act” for the purposes of the time limit for a discrimination claim?

No held the EAT in Moore Stephens and others v Parr

The Claimant was an equity partner of Moore Stephens LLP, a limited liability partnership accountancy firm.  Its LLP Members’ agreement provided discretion for the normal retirement age of 60 for members to be extended but on terms to be determined by the Managing Partner, to be decided according to business need.

The Claimant, Mr Parr wanted to stay at work after his normal retirement date. The Managing Partner agreed that he could remain for another two years beyond his normal retirement date but only as an ordinary, non-equity, partner.  The parties entered into an agreement to that effect in April 2018.

Some months later, Mr Parr learned that there were proposals to sell the business.  He was subsequently informed that as a non-equity partner, he was not entitled to a share of the proceeds of any sale.  As a result, Mr Parr brought a claim for direct age discrimination, alleging losses including in relation to the proceeds of sale of the business.

At first instance, the tribunal held that his demotion to an ordinary partner was “conduct extending over a period” which was continuing at the date of the presentation of the claim and therefore his claim had been brought within the statutory time limit – three months, less one day, of the last act of discrimination.

The EAT however disagreed. On appeal, the Respondent contended that the claim was about the continuing consequences of a one-off act – the change from equity to ordinary partner, and was not in respect of the continuing operation of a discriminatory rule or practice. The Respondent argued that the claim had been brought five and half months out of time.

The EAT agreed and held that the tribunal had erred in finding that the claim was in respect of “conduct extending over a period”, because the act complained off was a one-off exercise in the discretion to continue the Claimant’s membership of the LLP after his normal retirement date on inferior terms and the resulting change to Mr Parr’s status.  It was not the continuing application of a discriminatory rule or policy. The case was remitted back to the tribunal, to consider whether there are any just and equitable grounds to extend the time limit in order for the claim to proceed.

This case serves as a cautionary tale, insofar as it is always important to err on the side of caution when working out what is the time limit.  One-off acts are not a continuing policy even if the effects continue afterwards and for some time.  It is important to identify the act that you are allege is discriminatory, take note of the date it happened and that you file your claim, within the prescribed time limit by starting the ACAS Early Conciliation process.

We are here to give you prompt and effective legal advice so that your claims are properly considered, and time limits are observed.  We can help you calculate the time limits and protect your legal rights and entitlements while you decide how best to resolve your employment dispute.

This blog is written by Anita Vadgama, Legal Director for didlaw.