Counsel for the first respondent: Ben Cooper

 

The claimants complained of race discrimination in respect of a decision by the first respondent, the end-user in an agency relationship, to ‘ban’ them from its sites. The Claimants presented their claims to the employment tribunal more than three months after both the date on which the 'ban' was imposed and the date on which they last attempted to attend any of the sites to work. However, the claimants argued that the ‘ban’ constituted an on-going 'policy', and therefore the ban amounted to an "act extending over a period" within RRA, s68(7) of essentially of indefinite jurisdiction (this case is pre-Equality Act 2010).

 

Lanstaff J held that the question of whether the allegation is of a continuing act, or a one-off act with continuing consequences, is predominantly a question of fact. Consequently, he upheld the Employment Tribunal’s conclusion that in this case the 'ban' was a one-off act with continuing consequences.

 

 The claimants were granted permission to appeal by Sedley LJ, with a particular comment that the question may in fact be one of law rather than fact. The Court of Appeal are currently considering (a) whether the question is one of law or fact; and (b) whether in this case the alleged 'ban' would be a one-off act with continuing consequences or a continuing act.

 

 The potential implications are clearly quite significant for end-users who use numerous casual agency staff in situations of this kind where, in essence, the mechanism of a 'ban' is used to terminate the services of agency workers in the same way as dismissal is for directly-employed staff. If the claimants were to succeed, agency workers who are 'banned' could – in theory – have unlimited time to bring any discrimination claim.