Commissioner of Police of the Metropolis v Hendricks [2002] EWCA Civ 1686

In brief

The Court of Appeal allowed the appeal of a police officer who complained of race and sex discrimination over many years, and restored the employment tribunal's ruling that it had jurisdiction to hear her complaints (as recorded in Aziz v FDA [2010] EWCA Civ 304 at [31]). Mummery LJ said that "the tribunal was entitled to make a preliminary decision that it has jurisdiction to consider the allegations of discrimination" [48]. Mummery LJ held that both tribunals below had read the authorities on continuing acts too literally [51]. A policy, rule, practice, scheme or regime is only an example of an act extending over a period and is not "a complete and constricting statement of the indicia" of one [52]. The question is whether the employer was responsible for an ongoing situation or a continuing state of affairs in which a group of staff, here female ethnic minority officers, were treated less favourably, as distinct from "a succession of unconnected or isolated specific acts", for which time runs from the date of each act [52]. The claimant could take her case beyond the preliminary stage, but the burden remained on her to prove that the incidents were linked to one another and were evidence of a continuing discriminatory state of affairs [48]; she might in the end show no more than isolated, unconnected acts by different people over a long period, but it was too soon to say that her complaints were out of time [49]. It was a preliminary ruling on jurisdiction, with no findings on the merits.

Key provisions

• para-52 — Policy, rule or regime are examples, not a test: look at the substance of the complaint : Per [52], the concepts of policy, rule, practice, scheme or regime were given in the earlier authorities as examples of when an act extends over a period and should not be treated as a complete and constricting statement of its indicia. The focus is the substance of the complaint that the employer was responsible for an ongoing situation or a continuing state of affairs in which a group of staff were treated less favourably. The question is whether that is an act extending over a period, as distinct from "a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed" [52]. The paragraph is quoted in full in Waithaka v Barclays Execution Services Ltd [2026] EAT 105 at [24] and in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 at [17].
• para-51 — The tribunals below read the continuing-act authorities too literally : Per [51], both the employment tribunal and the appeal tribunal concentrated too literally on whether a policy, rule, scheme, regime or practice, in accordance with which decisions about the treatment of workers are taken, fitted the facts, citing Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, Rovenska v General Medical Council [1998] ICR 85 and Cast v Croydon College [1998] ICR 500. Mummery LJ compared Derby Specialist Fabrication Ltd v Burton [2001] ICR 833, where an accumulation of events over a period and a climate of racial abuse of which the employers were aware, but had done nothing, was treated as continuing conduct and a continuing failure to prevent racial abuse and discrimination [51]. The paragraph is quoted in Waithaka v Barclays Execution Services Ltd [2026] EAT 105 at [24].
• para-48 — The burden is on the claimant to prove the incidents are linked : Per [48], the claimant was entitled to pursue her claim beyond the preliminary stage on the basis that the burden was on her to prove, by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of an act extending over a period. Mummery LJ regarded that as a legally more precise way of characterising her case than expressions such as institutionalised racism, a prevailing way of life, a generalised policy of discrimination, or a climate or culture of unlawful discrimination [48]. The paragraph is quoted in Aziz v FDA [2010] EWCA Civ 304 at [32] and, as set out by the Employment Appeal Tribunal at [22], in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 at [17].
• para-49 — A preliminary ruling only: too soon to say the complaints were out of time : Per [49], the claimant might not succeed in proving more than isolated and unconnected acts by different people in different places over a long period, but at the preliminary stage it was too soon to say that her complaints were out of time. The paragraph is quoted in Aziz v FDA [2010] EWCA Civ 304 at [32].

When relevant

When an employee or worker complains of a series of incidents over months or years, some of them outside the Equality Act 2010 time limit, and the question is whether they form conduct extending over a period under section 123(3)(a), so that time runs from the end of the period [51]-[52]. It governs complaints to employment tribunals about work under Part 5 of the Act. It helps HR, investigators and senior leaders see that the substance of a complaint matters more than its label: the test is whether there was an ongoing situation or continuing state of affairs for which the employer was responsible, not whether a formal policy can be found, and the claimant must still show that the incidents are linked [48], [52]. Toolkit analysis: it bears on long-running concerns raised from either direction, such as repeated misgendering of a trans employee by different colleagues over many months, or repeated treatment of an employee who objects, on grounds of belief, to how a facilities arrangement is applied: an organisation that treats each incident as closed may still have to answer for the whole history if the incidents are linked. From 1 October 2026 it also decides which time limit applies, because conduct extending over a period is dated by its end (SI 2026/954 reg 4). Decision support, not legal advice.