RACE DISCRIMINATION – Continuing Act
The Employment Tribunal erred in law in striking out, at a Preliminary Hearing where no evidence was adduced, four of the six allegations of unlawful race discrimination made by the Claimant in circumstances where he contended that they all formed part of a continuing act.
First, while it is not necessary for an Employment Tribunal to set out precisely the approach it proposes to adopt, it is important that the correct approach is adopted. If that is apparent from the language used by an Employment Tribunal then no complaint can be justifiably be made. Here, however, on each occasion on which the Employment Judge dealt with whether a continuing act or a one-off act was involved in this case, the language used was the language of making primary findings of fact. That was an error. The Claimant’s case should have been taken at its highest unless directly contradicted by undisputed contemporaneous or other material.
Secondly the reasons given did not meet the Meek test. None of the points made on appeal by the Respondent appear as part of the Employment Tribunal’s Reasons. Furthermore, the finding that the conduct of Ian Hateley came to an end on 3 June 2015 did not answer the question whether there was any arguable link between the matters ending on 3 June 2015, and the grievance raised on 30 November 2015, followed by the meeting on 11 March 2016. The Claimant’s case depends on there being a continuing discriminatory state of affairs involving conduct on the shop floor followed by a total failure to recognise or address that conduct. The Employment Tribunal failed to consider or address this point altogether. The Reasons do not provide any explanation for why the Claimant’s case on this point failed.
Thirdly, to the extent that the Employment Judge can be said to have addressed this issue, the conclusion that there was no possible link between the shop floor conduct ending on 3 June 2015, and the grievance complaint about those matters in November and the March 2016 meeting, is perverse because it is unsupported by any evidence. It is true that the Claimant did not expressly assert ongoing conduct by Mr Hateley after 3 June 2015. His claim however was against the Respondent as a whole. Given the involvement of Ms Morris at the meeting on 3 June 2015, and again on 11 March 2016, and given that the grievance of 13 November 2015 raised complaints about alleged abuse on racial grounds in the meeting on 3 June 2015, albeit directed at Mr Hateley, it is difficult to see what evidential basis there was for reaching that conclusion in circumstances where factual disputes could not be and were not to be resolved by the Employment Tribunal at the Preliminary Hearing.
Citations:
[2018] UKEAT 0198 – 18 – 2211
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 03 June 2022; Ref: scu.634378