Ms M Rafiq First v Crystal Care Solutions Ltd Second Respondent: Rebecca Hilditch Third Respondent: Nathan Simpson — 2023

This was a public preliminary hearing on time limits and strike out. The claimant, a residential children’s worker, had ACAS early conciliation between 13 and 15 September 2023 and issued her first claim on 10 October 2023, so anything before 14 June 2023 was potentially out of time unless it formed part of a continuing act or it was just and equitable to extend time. A joined dismissal claim existed, but this hearing did not address it. Employment Judge Cookson sat alone, and the issue was confined to whether certain discrimination complaints in the first claim should be struck out.

As to Nathan Simpson, the tribunal held that none of the alleged discriminatory conduct happened on or after 14 June 2023. The allegations relied on were said to include comments in December 2022 about mince pies, pork and Dubai, April and May 2023 comments about bombs and a rainbow scarf, allegations of unwanted touching, and the 13 June 2023 remark that the claimant was to be suspended and investigated for radicalisation. The judge accepted the claimant’s case had to be taken at its highest but found she had not shown a reasonably arguable continuing act under the authorities on conduct extending over time, and had not provided a sufficient basis for a just and equitable extension. The balance of prejudice was also found to favour Simpson. Those complaints were struck out under rule 37(1)(a).

By contrast, the tribunal was not persuaded that the complaints against Rebecca Hilditch and the first respondent, including the alleged use of the word in the race complaint, the hijab/curtains comment, and the later suspension and disciplinary allegations, had no or little reasonable prospect of showing a continuing course of conduct or a time extension. The judge said there may be a connection between the earlier alleged hostility and the later safeguarding-related events, and noted that much would turn on witness evidence; he also recorded the claimant’s reference to an audio recording. An amendment to add a race discrimination complaint against Hilditch was allowed. Those complaints were not struck out and were left to be determined at the final hearing, with no remedy decided in this judgment.