The Appellant appealed against the ruling of the Employment Tribunal at a Preliminary Hearing that certain of his race discrimination and racial harassment claims should be struck out because they were out of time. The appeal was allowed, on the basis that the Tribunal had not addressed the Appellant’s contention that apparently disparate acts and omissions were linked as being part of a continuing discriminatory state of affairs so as to amount to an act extending over a period for the purposes of Equality Act 2010, section 123(3)(a), following Hendricks v the Commissioner of Police for the Metropolis [2003] ICR 530 (CA). The EAT substituted a finding that it was premature to strike out the relevant parts of the Appellant’s claim, as the Hendricks issue should be determined by the Tribunal at the Full Merits Hearing, after hearing all the evidence.
The Appellant also appealed against the decision of the Employment Tribunal at the Preliminary Hearing that the Appellant would not be able to advance a victimisation claim at the Full Merits Hearing. This ground of appeal was dismissed, on the basis that the Tribunal had been right to refuse the victimisation claim to be advanced, as it was not pleaded in the ET1 and had not been included in the list of issues that had been agreed by counsel for both parties and approved by the Tribunal at a previous Preliminary Hearing, and because the Appellant had not applied to amend to add the victimisation claim.
The third ground of appeal, which was that the Tribunal had been wrong to dismiss the Appellant’s reconsideration application because it was out of time was dismissed. The Appellant was right that the Tribunal had erred in finding that the reconsideration application was out of time, but the subject-matter of the reconsideration application consisted of grounds of appeal, rather than a valid reconsideration application, and the subject-matter had been dealt with in this appeal. Accordingly, no purpose would be served by allowing the appeal on this ground and remitting the reconsideration application to the Employment Tribunal.
[2020] UKEAT 0066 – 20 – 2107
Bailii
England and Wales
Employment
Updated: 30 November 2021; Ref: scu.653916
