Ms S Smith v Lee Hecht Harrison Penna Limited — 2021

Ms S Smith was employed by Lee Hecht Harrison Penna Limited as an Accounts Payable Assistant from August 2019 until her dismissal in December 2020 for gross negligence. At this preliminary hearing, the tribunal considered whether her claims were in time, whether time should be extended, and whether the victimisation and breach of contract claims should be struck out or made subject to deposit orders.

The direct race discrimination complaint concerned an alleged remark by Mr Punn on 7 July 2020 about the appointment of Mr Nankani. The tribunal assumed for the hearing that the remark was made, but held that the complaint was substantially out of time because ACAS early conciliation was not entered until 11 March 2021, well outside the three-month limit under section 123(1) of the Equality Act 2010. It found there was no continuing act and no satisfactory explanation for the delay, so it declined to extend time and dismissed that complaint.

The tribunal recorded that, if time had been extended, it would have ordered a modest deposit because the race discrimination complaint stood very little prospect of success. It noted that the claimant’s account of what she told Mr Leung in August 2020 did not frame the remark as race-related, and that the respondent would likely be able to show the comment was not made because of race but because of Mr Nankani’s suitability for the role. However, the tribunal did not need to decide that issue finally because the complaint failed on limitation.

The victimisation complaint was in time, but the tribunal held it had no reasonable prospect of success and struck it out under Rule 37(1)(a). It found that the claimant had not done a protected act within section 27 EqA: on the account before the tribunal, she had complained about the comment as upsetting and linked it to experience and the appointment, but had not alleged race discrimination at that stage. The tribunal therefore concluded that the suspension and dismissal complaints did not fall within victimisation as pleaded.

The breach of contract complaint was also struck out. The tribunal accepted the claimant’s acknowledgment that the policies she relied on were expressly non-contractual. It further observed that, even if the policies had been contractual, she had not resigned in response to any breach and had suffered no loss, as she was later paid in lieu of notice. The final outcome was that the claim was dismissed and the listed full merits hearing was vacated.