Key Issue: Interpretation of Conduct Extending Over a Period in Age and Disability Discrimination Claims

Citation: [2024] EAT 40
Judgment on


In the Employment Appeal Tribunal case of Worcestershire Health and Care NHS Trust v Angela Allen, the tribunal examined several key issues primarily concerning claims of age-related harassment and disability discrimination. The complexities of the case hinged on the interpretation of conduct extending over a period, the concept of harassment related to a protected characteristic, and the correct application of the burden of proof in discrimination cases.

Key Facts

The claimant, Angela Allen, brought forth a series of complaints against the NHS Trust involving age and disability discrimination, succeeding in a limited number of these. The tribunal’s decision focused on appeals and cross-appeals concerning specific findings related to harassment, direct discrimination, and whether the conduct constituted a continuous and extended period of discrimination.

Several legal principles underpin the tribunal’s decision, particularly focusing on sections of the Equality Act 2010 (“EQA”):

  • Section 39 EQA: Prohibition of discrimination against employees, including dismissal and other detriments;
  • Section 13 EQA: Definition of direct discrimination where treatment is less favourable because of a protected characteristic;
  • Section 26 EQA: Definition of harassment as unwanted conduct related to a protected characteristic causing a violating or hostile environment;
  • Section 123 EQA: Time limits for bringing a discrimination complaint, treating conduct over a period as done at the end of the period;
  • Section 136 EQA: Shifting the burden of proof in discrimination claims;
  • Igen v Wong [2005] ICR 931: Guidance on the application of the burden of proof in discrimination claims;
  • Commissioner of Police of the Metropolis v Hendricks: Concepts of policy or ongoing situations as examples of “acts extending over a period.”

The legal reasoning in this case particularly reflected on whether the alleged incidents of age discrimination and decisions made about Allen could be seen as a continuous act of age discrimination and whether the failure to investigate her grievances was in itself an act of harassment related to the protected characteristic of age.


  • The appeal against the finding of age related harassment due to ticking the box querying whether ill health retirement was appropriate was successful, as there was no connection to the claimant’s age identified by the tribunal. The tribunal instead posited this was related more to the NHS Trust’s policies rather than the age of the claimant.

  • The finding of harassment related to age due to the outcome of the grievance hearing was also deemed successful in the appeal since the prejudgment of the grievance was not related to the claimant’s age.

  • The tribunal’s rejection of the notion of conduct extending over a period was upheld in the appeal, as the tribunal found no evidence of a continuing state of affairs related to age discrimination between the ticking of the ill health retirement box and the eventual dismissal.

  • Due to these findings, the issue of extending the time limit beyond three months on just and equitable grounds was remitted back to the same Employment Tribunal for further consideration.


The Worcestershire Health and Care NHS Trust v Angela Allen case reaffirms the nuanced application of legal principles associated with discrimination claims under the EQA. This includes careful consideration of the ‘related to’ concept in harassment claims, the distinct stages of burden of proof, and the criteria for determining whether acts constitute a conduct extending over a period. The appeal recognized the necessity for a clear linkage between discriminatory conduct and a protected characteristic and emphasized the requirement for tribunals to articulate clearly why conduct is found to be related to the characteristic in question.