Hale v Brighton & Sussex University Hospitals NHS Trust UKEAT/0342/16/LA

Appeal against the dismissal of the Claimant’s claims for discrimination on the grounds of race, unfair dismissal and wrongful dismissal. Appeal allowed in part.

The Claimant, who was white British, made complaints of race discrimination against some colleagues and they also made complaints against him. The complaint against the Claimant was investigated under the MHPS procedure, whereas the Claimant's complaint against the complainants was not. The Claimant was summarily dismissed. The ET found that the different way in which the complaints were dealt with gave rise to a difference in treatment and a difference in race but that was not enough to shift the burden of proof. They went on to conclude that although the Respondent subsequently did not discharge the burden of proof, the Tribunal regarded it as a one-off act and said the "arguments about acts extending over a period do not arise" - the Claimant had been dismissed for gross misconduct. The Claimant appealed on several grounds, the main challenge being that the Tribunal was wrong to treat the decision to instigate the MHPS procedure as a one-off act of discrimination, rather than as part of an act extending over a period. Alternatively, it was said that if the Tribunal was correct to treat it as a one-off act, it erred in deciding that it was not just and equitable to extend time.

The EAT allowed the appeal. The Tribunal erred in treating the decision to instigate disciplinary procedures as a one-off act when that decision created an ongoing state of affairs to which the Claimant was subject. That part of the claim was therefore in time.  The Tribunal did not err in concluding that there had been no discrimination in relation to the dismissal or in finding that the dismissal was not unfair.


Published: 19/02/2018 17:29