Ms Shona Newmark - Solicitor For the v Mr A Ross - Counsel — 2019

At a preliminary hearing on 7 May 2019, Employment Judge Martin considered the Claimant's claims of harassment on the grounds of race. The ET1 particularised incidents on 2 February 2017, 25 July 2017, and 4 September 2017, concerning alleged mimicry of the Claimant's accent and a remark that she had been wailing in a manner similar to a Caribbean or Greek funeral. The Claimant described herself as Black African and the protected characteristic in issue was race.

The tribunal held that the claims were presented 5 days out of time. Applying section 123 Equality Act 2010 and the just and equitable extension test, and referring to Abertawe Bro Morgannwg University Local Health Board v Morgan, Robertson v Bexley Community Centre t/a Leisure Link, and O'Brien v Department for Constitutional Affairs, the judge found there was no sustainable or credible reason to extend time. The suggestion that the Claimant may have been waiting for internal resolution was treated as conjecture and was not supported by her witness statement.

The tribunal also said that, even if time had been extended, the claims would have been struck out because they had no reasonable prospect of success. The judge had the benefit of the parties' exchanged witness statements, the transcript and recording of the 4 September 2017 conversation, and the grievance raised after that meeting. On the judge's assessment, the remark was made in a descriptive way to explain the Claimant's behaviour and its effect on others, and the grievance did not refer to the conversation.