Did the fact that the same lay member sat concurrently on two separate tribunal panels considering claims which involved the same parties give rise to apparent bias and thus unfairness? If so, had the Appellant waived the right to take the point?
JURISDICTIONAL POINTS – Time bar; pleading; conduct extending over a period
Where the Appellant (a) indicated during pre-hearing case management that no issue in her case arose after 10 August 2016, and (b) thereafter stated at the start of the full hearing that she relied upon the discretion of the tribunal to extend the primary time limit under section 123 of the Equality Act 2010 on just and equitable grounds, did the tribunal err in rejecting an argument advanced in closing submissions that she was entitled to rely upon an event after 10 August 2016 on the basis that it was linked to earlier events as part of a course of ‘conduct extending over a period’ in terms of section 123(3)(a) of that Act?
Held:
(1) In the particular circumstances of the two cases, a fair minded and informed observer would not see a real possibility of bias, nor was there actual unfairness to the Appellant in the conduct of either case.
(2) Conduct which was not relied upon as being discriminatory could not be founded upon as part of a course of conduct extending over a period in terms of section 123(3)(a) of the Equality Act 2010. In any event, it would not have been fair to have allowed the Appellant to raise that point only in closing submissions, and the tribunal did not err in holding that it did not have jurisdiction to determine her claims.
Citations:
[2020] UKEAT 0100 – 19 – 2810
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 31 March 2022; Ref: scu.655540
