In person v Respondent — 2022

The claimant presented race and disability discrimination claims on 5 January 2022 after ACAS early conciliation began on 7 November 2021 and the certificate issued on 5 January 2022. The preliminary hearing was to decide whether the claims should be dismissed for being presented outside the time limit in section 123 of the Equality Act 2010. The tribunal noted the principles that conduct extending over a period is treated as done at the end of that period, that a claimant must have a reasonably arguable basis for saying the allegations are linked as continuing acts, and that it is the exception rather than the rule that a tribunal will allow a late claim.

For race discrimination, the tribunal treated the allegations in the claimant’s further information document as the pleaded case, apart from a reference to a February 2022 appeal outcome which post-dated the claim. It assumed, without finding, that the earlier race allegations about being told she would not be promoted and being reprimanded by managers might form conduct extending over a period from October 2018 to 15 April 2020, but it did not accept that the later grievance outcome on 30 April 2021 was part of the same continuing course. The tribunal held that the earlier allegations should have been brought by July 2020 and the grievance-related allegation by July 2021, so the claim was presented about 17 months late in relation to the earlier acts and five months late in relation to the later act.

For disability discrimination, the tribunal identified two alleged acts: a comment by Ms Brown in September 2020 and Ms McCrory’s grievance outcome on 30 April 2021. It found there was no reasonably arguable basis for treating those as conduct extending over a period because they were different in nature, involved different people, and were several months apart. The earlier allegation should have been presented by December 2020 and the later one by July 2021, so both were out of time.

The claimant’s explanation for the delay was that her trade union representative told her she could not bring a tribunal claim until her grievance appeal was resolved. The tribunal did not accept that explanation as credible because the claim was in fact presented before the appeal outcome in February 2022. It also accepted the respondent’s argument that, if the earlier race allegations were allowed to proceed out of time, the respondent would suffer substantial disadvantage because the relevant individuals’ memories were likely to have been affected by the passage of time. The tribunal therefore refused to extend time on a just and equitable basis and dismissed the claim.