Extended acts of discrimination

A recent judgment of the Jersey Employment and Discrimination Tribunal provides guidance on the limitation period for discrimination claims, especially those involving allegations going back several years.

Case outline

In Francioso v States Employment Board [2024] TRE 127, the Jersey Employment and Discrimination Tribunal was asked to decide claims of disability discrimination, race discrimination and unfair dismissal.

By the time the case reached the final hearing stage, a number of the claimant’s claims had been dismissed as being out of time, and others had been struck out having been added after the original claim form was filed. Despite that, the remaining claims which the Tribunal had to decide included “…30 allegations of discrimination dating back several years“.

The case involved the termination of the employment of a dental officer employed by Jersey’s public sector employer, essentially on ill-health capability grounds, and the events leading up to that termination. The outcome was that the claimant’s dismissal was found to be discriminatory and thus automatically unfair.

The claimant has since been granted leave to appeal to the Royal Court in relation to various points of law but the Tribunal’s guidance on the deadline for presentation of discrimination claims appears unaffected.

Limitation period

Under the Discrimination (Jersey) Law 2013 (DJL), a discrimination claim must be brought within eight weeks from the alleged act of discrimination.

That limitation period is a strict one, but it may be extended where the claimant satisfies the Tribunal that it was not reasonably practicable for the claim to have been brought sooner.

A separate exception is set out in Article 37(3) DJL, which provides that: “Any act prohibited by this Law which extends over a period is to be treated as done at the end of the period.”

Further, under Article 37(3(c) DJL, “where an act consists of a failure to do something, that failure is to be treated as occurring when the person in question decided on it“.

Applied in practice, this principle means that if a claimant can show that an alleged act of discrimination was part of an extended act occurring over a period, at least one part of which falls within the eight-week primary limitation period, the earlier act may be treated as in time.

Guidance on the “extended act” principle

Having reviewed the Jersey cases in which the extended act principle has been considered, as well as the position in the UK, the Tribunal noted that it is “increasingly common” in Jersey for discrimination claims to involve allegations of discrimination going back several years.

Against that background, the Tribunal summarised the law on this issue as it will be applied in Jersey. Pending further judgments of the Tribunal or guidance from the Royal Court, this summary represents the approach that will be taken to extended act claims in the future:

1. There is a distinction between an ongoing act and a one-off act with continuing consequences. The latter does not amount to an extended act. A refusal of promotion may have ongoing consequences but is not an extended act.
2. An extended act can include an extended omission.
3. The acts or omissions must be in relation to the same protected characteristic. Harassment on the grounds of race cannot form an extended act with an act of harassment on the grounds of disability.
4. The acts or omissions must be a breach of the same Article of the Discrimination Law. For example, unfavourable treatment because of something arising from disability under Article 6(12) and a failure to make a reasonable adjustment under Article 7A cannot be a single extended act.
5. Acts that involve multiple applications of the same discriminatory practice or policy can form an extended act. For example, a policy or practice provides that staff of a certain nationality are to be paid less than other staff not of that nationality. In such a case each payment may form part of an extended act.
6. Where the acts are not linked to a discriminatory policy or practice the acts or omissions must be sufficiently similar. For example, a calendar or poster that is left up on a wall in circumstances where the test for harassment under Article 28 is satisfied. Another example is the case of De Tommaso where the claimant was subjected to similar acts of racial harassment over a three-month period by the same person.
7. Acts and omissions will not be an extending act if they are too far apart and isolated.
8. If discriminatory acts are done by different people the acts will not be considered a single extended act unless they arise from the application of the same discriminatory practice or policy.

The Tribunal added further to this guidance that a claimant must, in their claim form, identify an act of discrimination that is within the primary limitation period, and explain how that act “extends back to an earlier breach of the same Article based on the same protected characteristic“.

Recognising that this is a strict interpretation of the extended act principle, the Tribunal observed that this accords with the intention behind the DJL to impose strict time limits on discrimination claims – and that the consequence of claim forms or further particulars of claim being deficient in this regard is that claims based on acts falling outside the eight-week primary limitation period “may be struck out“.

The counterbalance to this, as the Tribunal observed, is that earlier allegations can provide evidence to help a claimant establish that a later, in time, act was discriminatory. Nonetheless, claimants and their representatives have been warned.

Key takeaways

The judgment in Francioso, which was given by the Tribunal Chair, was expressly set out as guidance for claimants. As such, we expect it will have a real impact on the management of discrimination claims in Jersey, especially at the preliminary stages of Tribunal proceedings.

Whilst, as a rule, the Tribunal may be reluctant to make findings of fact before a final hearing, the message is clear that the claim forms and wide-ranging allegations will be carefully scrutinised by the Tribunal in determining whether a claim is presented in time. Historic allegations may not be allowed to proceed if they are not linked to more recent events and the claims arising from those.

For respondents and their representatives, the guidance provides a stronger basis for early limitation challenges and strike‑out applications, and emphasises the need for close analysis of a claim form at the earliest part of the Tribunal process.