Sex Discrimination – Continuing Act
JURISDICTIONAL POINTS – Extension of time: just and equitable
The Claimant in the Employment Tribunal (now the Respondent to this appeal) complained of alleged discriminatory conduct on the part of the Respondent in the Employment Tribunal, during the course of her employment, on various occasions, and in various ways, during 2017. She also complained that this conduct amounted to a cumulative breach of the implied duty of trust and confidence, and led to her resigning on 24 August 2017, in circumstances amounting to a constructive unfair and discriminatory dismissal.
At a Preliminary Hearing the Tribunal correctly found that time began to run in respect of the unfair and discriminatory dismissal claims on 24 August 2017, and that they were presented on a date outside of the primary time limit, as adjusted for the impact of ACAS Early Conciliation. It was not persuaded that it was not reasonably practicable to present the unfair constructive dismissal claim in time, but it did find that it was just and equitable to extend time in respect of the discriminatory constructive dismissal claim. By the time of the Full Hearing in the EAT there was no live challenge to either of those decisions.
The Tribunal had also decided that all of the alleged pre-resignation discriminatory conduct amounted, taken together with the alleged discriminatory constructive dismissal, to conduct extending over a period, so that time in respect of all such complaints also ran from 24 August 2017. It had not merely found that the Claimant had a prima facie case to that effect; on a correct reading of its decision, it had decided the point. Then, using that start date, the Tribunal also found that it was just and equitable to extend time in relation to those complaints.
However, the Tribunal erred in making a definitive finding that there was conduct extending over a period, when it had considered no evidence, and made no findings of fact, in relation to that alleged pre-resignation conduct, or which, if any, of the matters complained of, amounted to discriminatory treatment as alleged. Hence it erred in its decision that it was just and equitable to extend time in respect of the complaints of alleged pre-resignation conduct. That was because that decision was based on the premise that this formed part of conduct extending over a period, so that time only began to run in respect of them when the Claimant resigned.
Whether there was any pre-resignation discriminatory conduct; whether, if so, any such conduct formed part of conduct extending over a period, together with any other discriminatory conduct found; hence, when time began to run in respect of any pre-resignation discriminatory conduct found; and whether it was just and equitable to extend time in relation to any conduct so found, will all be for the appreciation of the Tribunal at the Full Merits Hearing.
The Claimant was permitted to enter a late Cross-Appeal, which succeeded, as the Tribunal had proceeded on the erroneous footing that there was no complaint of harassment relating to alleged conduct in 2017 (as opposed to complaints of direct discrimination). On a correct construction of the claim form, there was such a complaint in relation to one alleged incident on 17 January 2017 (as an alternative to direct discrimination), which had not been withdrawn.
Citations:
[2019] UKEAT 0149 – 19 – 1406
Links:
Jurisdiction:
England and Wales
Employment
Updated: 14 October 2022; Ref: scu.646844