The race discrimination claim in The Basildon Academies Trust v Polius-Curran arose out of the appointment of a white colleague to head of a school's maths department instead of the claimant. The colleague was appointed acting Head of Department in May 2012, at a time when he did not have sufficient post-qualification experience to hold the post substantively. When he gained that experience he was appointed substantively, from 1 September 2012.
The claimant had expressed an interest in the post, through an agency, and was assessed in February 2012 for a position as a maths teacher. She was regarded as unsuitable for the Head of Department role at that time because she had a five year childcare gap in her CV.
Although the direct race discrimination claim was not brought within the three month time limit, the Tribunal had allowed it to go ahead because the claimant had continually raised the issue of her colleague's appointment during her employment (and because his appointment was never regularised through a formal recruitment process). In other words, the alleged discrimination was a "continuing act", so that time would not start to run until it ended.
The EAT allowed the appeal. The appointment of the claimant's colleague was a one-off act with continuing consequences; it was not a continuing act extending over a period. Neither the fact of the claimant complaining about it, nor the failure to "regularise" the appointment, could turn it into a continuing act. However, the appointment decision was not completed until 1 September, so time began to run from that date.
The Tribunal had also not dealt with the issue of proving discrimination in the correct way. The employer's argument that the claimant had done no more than show a difference in treatment and in race was rejected; the claimant had established a prime facie case and it was up to the employer to show there was a non-discriminatory reason. However, the Tribunal had failed at that stage to consider whether one of the explanations given by the employer – the five year CV gap – was the reason why the colleague, rather than the claimant, was appointed.