Is the three month time limit for Discrimination complaints really compatible with individuals having an effective legal redress for those complaints? Over years of providing discrimination law advice, I have become convinced that it is not.
Discrimination at work is an insidious practice and discriminators tend not to announce their intentions. Although one-off events can and do occur, it is not at all unusual to have a build-up of hostile behaviours and a number of incidents in which an employee suspects discrimination, but is not sure until a later event crystallises their view.
Litigation is a blunt tool for discrimination complaints, and should be a last resort. Also, individuals experiencing discriminatory or unexplained hostile treatment often try to resolve matters by trying to repair or mediate relationships, correctly judging that bringing discrimination proceedings against colleagues and employers is unlikely to win friends or result in a rapid career progression. Should we be forcing people to litigation within a three month period?
Now of course claims can be brought as "conduct extending over a period" and there is also the possibility of the tribunal making a just and equitable extension. However, both of these options for the tribunal are routinely subject to opposition from Respondents' solicitors (trying legitimately to protect their clients' interests) and it makes it difficult to advise clients with any certainty that older incidents can be pursued in a claim. It also increases expense as there is a good prospect of ending up in a pre-hearing review.
It does not seem sensible to me that those complaining of discrimination in the provision of services get six months in which to consider a complaint; yet employees, who are far more likely to have "course of conduct" complaints due to the on-going relationships, are stuck with three months.
What is the answer? Could we legislate for an expanded equality clause in all contracts to provide for a continuing right to enforce discriminatory behaviour while in the same employment? Could the deadline be extended to 6 or 12 months? In my view any of these options would improve the position.
In the meantime, it is best to exercise caution if you think you have a claim, and you should always seek advice without delay.
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By Alison Humphry, Employment Law Expert.