Mrs L Mankau (counsel) For the v Respondent — 2022

This was a preliminary hearing on the Respondent's applications to strike out the claim or, alternatively, to order a deposit. The underlying case, brought by Mr R Khan against Camden and Islington NHS Foundation Trust, included direct race discrimination, direct religion or belief discrimination, failure to make reasonable adjustments for disability, discrimination arising from disability, harassment in relation to race and/or religion or belief, and victimisation. The claim had been presented on 4 January 2022 after ACAS early conciliation between 25 October 2021 and 5 December 2021. The tribunal treated 26 July 2021 as the critical date for the primary three-month limitation period under section 123 Equality Act 2010, subject to continuing act and just and equitable extension arguments.

The tribunal split the factual allegations into three parts. First were the complaints about Ms Whiskar and Mr Fishwick, which the Claimant accepted had ended around September 2020. Second was the grievance appeal process: as at 26 July 2021 the appeal had not been heard and the Respondent had not decided not to hear it, but the Claimant had accepted that from 1 June 2021 he was too unwell to participate and remained so until about March 2022. The tribunal held that the grievance appeal point did not show an ongoing unlawful state of affairs once the Claimant himself was unable to proceed, so that part had no reasonable prospect of success on a continuing act basis. Third were the complaints in the Claimant's 15 August 2021 email about feeling excluded and isolated from the team, being required to rewrite and repeat matters, and not being told until 10 August 2021 that the person dealing with his complaint had left the Trust. Taking the case at its highest, the tribunal held that this third part was arguably in time and could arguably form part of a continuing state of affairs.

The tribunal also held that there was an arguable case for a just and equitable extension in respect of any out-of-time elements. It relied on the ongoing grievance appeal process, the limited prejudice to the Respondent, the Claimant's reliance on Unison and the legal advice he received, and his ill health. The tribunal noted that the Respondent accepted there had been bullying by Ms Whiskar, which provided some support at the deposit stage. Applying the cautious approach required in discrimination strike-out applications and the lower deposit-order threshold, the tribunal dismissed both the strike-out and the deposit order applications. No substantive findings on liability or remedy were made at this stage.