The EAT in Whitburn v Royal Devon & Exeter NHS Foundation Trustlooked at claims for alleged disability discrimination, originally dating from 2007, to see if they should have been struck out by the Tribunal for lack of a reasonable prospect of success. The claimant was looking to show a "common thread" of conduct amounting to continuing discriminatory practices in relation to work patterns and absence, so that the claims would not be out of time.

The rule for claims straddling periods before and after the Equality Act came into force in October 2010 is that the conduct would have to be unlawful under both the pre and post 2010 regimes in order to be allowed to proceed.

The EAT allowed a harassment claim, based on the employer's alleged refusal to discuss adjustments to work patterns, to go ahead. Harassment was clearly covered by both regimes and could potentially be continuing conduct if it formed part of the common thread of work pattern issues.

Another allegation was of "discrimination arising from a disability" – the claimant said she had been subject to disciplinary action for alleged misconduct because disability related absences were treated as gross misconduct.  The EAT concluded that she could not bring this claim  because "discrimination arising from a disability" was introduced under the Equality Act specifically to replace disability-related discrimination (which had become effectively redundant as a result of case law) and there was no equivalent before.

However, a third claim, about a requirement to work weekdays, was allowed under an "indirect discrimination" heading, even though there was no indirect discrimination in the Disability Discrimination Act. The EAT apparently reckoned that disability-related discrimination covered the same ground.