Natalie Hughes v City of Liverpool College — 2023

This was an open preliminary hearing on the Respondent's application to strike out the Claimant's race discrimination claims on limitation grounds. The ET1 was issued on 15 June 2022, so any act before 14 March 2022 was outside the ordinary three-month time limit after ACAS early conciliation. The Respondent said the race allegations related to a September 2021 refusal to interview the Claimant for assistant dean of academic studies and a December 2021 grievance outcome, and that later May and August 2022 allegations had been raised late in an attempt to suggest a continuing act. The Claimant said the discrimination had been ongoing through the academic year, that she had no legal advice on limitation, and that she understood the process to have ended with an addendum letter dated 21 January 2022.

The Tribunal set out the statutory test in section 123 of the Equality Act 2010 and referred to British Coal Corporation v Keeble, Abertawe Bro Morgannwyg University Local Health Board v Morgan, Robertson v Bexley Community Centre, Chief Constable of Lincolnshire v Caston, and Department of Constitutional Affairs v Jones. It found that even on the Claimant's later date the delay was about seven weeks, and longer if the December 2021 decision date was used. The Claimant's evidence about advice and time limits was unclear, and although she was unrepresented the Tribunal found she was intelligent and resourceful enough to have established the applicable time limits and their importance.

The Tribunal accepted that the Claimant found the situation stressful, but it said her explanation for not researching the time limit was that she hoped the Respondent would act more fairly, which it described as somewhat naive. It found little evidential prejudice to the Respondent because one relevant witness was already assisting in other aspects of the case and another no longer worked for the Respondent. It also found no good explanation for the new May and August 2022 allegations said to support a continuing act, and said the ET1's allegations were discrete rather than suggestive of a continuing course of conduct.

On that basis the Tribunal rejected the Respondent's strike-out application because it could not say there were no reasonable prospects of a tribunal finding it just and equitable to allow the claims to continue. However, it accepted the Respondent's alternative submission that there was little reasonable prospect of the claims being allowed to continue and said deposit orders under Rule 39 were appropriate; those orders were made under separate cover. No monetary award was recorded in this written decision.