Krystian Smuda v Great Bear Distribution Ltd HELD AT: Liverpool (by CVP) — 2023

At this preliminary hearing on 19 February 2024, Employment Judge Shotter considered the respondent’s application to strike out the claimant’s race discrimination complaints under the Equality Act 2010. The claimant did not attend. The tribunal proceeded on the basis of the claim form, witness statements and bundle, and noted that the claim form had been presented on 6 May 2023 after ACAS early conciliation between 28 April 2023 and 2 May 2023.

The tribunal held that the allegations about Stephen Harper, which concerned early starts and rest-day calls in 2022, could not realistically be treated as part of a continuing course of conduct that extended to the claimant’s dismissal on 24 May 2023. It found that Mr Harper’s involvement had ended by 1 August 2022, that he was not involved in the investigation, dismissal or appeal, and that there was no basis in the pleaded case for a discriminatory culture linking those earlier acts to the dismissal. It therefore dismissed the complaint of direct race discrimination in relation to those earlier acts and refused to extend time on a just and equitable basis.

In reaching the time-limit decision, the tribunal applied the statutory time limit in section 123 Equality Act 2010 and considered the principles on continuing acts and extension of time, including the balance of prejudice. It noted the claimant’s stated reasons for delay, but found them insufficient, and placed weight on the passage of time and the fact that Stephen Harper had died on 10 September 2023, which meant the respondent would be materially prejudiced in defending the allegations.

The discriminatory dismissal complaint was treated separately. The tribunal said it was very weak and very close to strike out because the claimant had a live final written warning, prior performance issues, less than two years’ service, and no comparator or other evidence showing that the dismissing officer was motivated by race. However, it stopped short of strike out and instead made a deposit order, with further case management directions and a re-listed final hearing.