1/ There's not been a decent one-off or continuing act case for a while, but Moore Stephens LLP v Parr provides much of the relevant case law all in one convenient place.
bailii.org/uk/cases/UKEAT…
#ukemplaw
2/ P was an equity partner at MS, an accountancy firm. There was a provision in the LLP members' agreement for a normal retirement age of 60 but with MS having discretion to extend beyond on terms decided by the managing partner.
3/ When P reached 60, MS decided he could continue another 2 years but only as a non-equity partner. This was agreed. A few months later, P learned of subsequent proposals to sell MS & then learned that as a non-equity partner he'd not receive a share in the proceeds of sale.
4/ He brought a direct age discrimination claim (for c.£4m) whose timeliness depended on whether the removal of equity status was a 1-off act with continuing consequences or was conduct extending over a period. The ET found the latter & that the claim was in time. MS appealed.
5/ The EAT allowed MS's appeal. Its analysis starts with Amies, a sex discrim claim about the appointment of a man to an art department head role. There the EAT held the appointment a 1-off act, contrasting it to a rule that only men would be appointed: a continuing act.
6/ Next was Calder, about an employer refusing to pay a mortgage subsidy provided to male employees because C was female. There the scheme was constituted in such a way that female employees couldn't benefit & that was held to be a continuing act.
7/ The EAT moved on to Barclays v Kapur, the HL race discrim case about failure to count periods of service for Barclays in East Africa when calculating pensions, another example of a rule working against the claimants' protected characteristics, & a continuing act.
8/ Sougrin v Haringey was next up, where a race discrim case focused on a pay grading decision was held to be a one-off act - it wasn't a rule that led to the grading decision. The only rule here was to be paid at your grade, but that was a continuing consequence of the 1-ff act
9/ The EAT then looked at Owusu, where the EAT accepted as a continuing act an alleged continuing (and repeated) practice of excluding O from regrading exercises & from opportunities to act up.
10/ Cast v Croydon was next, where similarly to Owusu a sex discrim claim in re a practice to refuse C's requests to job share & to work part time were all refused. This was held to be an allegation of a discriminatory policy or regime & a continuous act case.
11/ The famous Hendricks was next, with H's numerous allegedly linked allegations of discrim against the police force, which the CA accepted asserted a continuing discriminatory state of affairs & thus an act extending over a period.
12/ We can doubtless all recite para 52 of Mummery LJ's judgment in Hendricks, but it bears repeating with its focus on whether a multiplicity of complaints amounted to an act extending over a period as opposed to a succession of unconnected, isolated specific acts.
13/ The EAT also noted the recent case of South Western Ambulance Service v King, in which it was made clear that in a chain of acts it's only the discriminatory ones which count for time limit purposes.
14/ Having set out the case law, the EAT distinguished for the purpose of this appeal between the discriminatory rule/policy cases (Calder, Kapur, Owusu) & those without such a discriminatory rule/policy (Amies, Sougrin).
15/ The EAT gave particular emphasis to the observation in Cast that a 1-off act can still emanate from an established discriminatory policy in circumstances where the complaint is of a specific discriminatory act.
16/ Here, the pleaded complaint was of a specific act - change from equity to non-equity status. The EAT noted that the policy applied was one which had equally been applied to others to retain them as equity partners & was the exercise of a genuine discretion.
17/ That was important in placing the case outside of the Calder/Kapur strand - the claim resulted from a specific discretion exercised as to P's status. It was a one-off act exercised in a particular manner rather than emanating from a rule precluding equity partnership post-60.
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