Ms S Tesfagiorgis v And and 3 others — 2020

At an open preliminary hearing in London Central on 19 November 2020, Employment Judge Nicolle considered whether the claimant’s race and sex discrimination complaints about acts or omissions before May 2011 were out of time. The respondent sought strike out or a deposit order. The claimant relied on a continuing act argument running from the start of her employment in 2007 to her sickness absence in December 2019, and said the pre-2011 incidents were linked to later complaints about the way customer conduct was handled at the Club.

The tribunal found that conduct did not extend over time from the 2007 and 2009 Sabanci incidents through to May 2011. It accepted that the claimant’s case was directed more generally to the respondent’s management response to racist and sexist customer behaviour, but held that the incidents in 2007 and 2009 were distinct, that there was no particularised series of similar incidents between 2009 and 2015, and that the next substantive matter relied on, in June 2015, was a shift-swap dispute of a different nature. It also took account of changes in management over time, including the departure of a number of managers and the fact that two had died.

The tribunal rejected the just and equitable extension argument as well. It noted that the claimant had legal advice in 2009 but decided not to issue tribunal proceedings at that time, and it found that the very substantial delay would compromise the cogency of the evidence and prejudice the respondent. It therefore refused to extend time and did not make a deposit order. The tribunal recorded that the pre-May 2011 matters could still be referred to as background evidence at the full merits hearing, but not as matters on which it could make findings or awards in the claimant’s favour. Later allegations after May 2011 were left to the full hearing.