Miss M Lackenby v Chief Constable of Cleveland Police — 2020

At this preliminary hearing, Employment Judge Morris considered the respondent's application to strike out three complaints of direct sex discrimination arising from the claimant's alleged treatment in the Sergeant Promotion, the Inspector Duties and the Inspector Promotion. The respondent argued that the complaints were out of time, were not capable of amounting to conduct extending over a period, and were insufficiently particularised; it also relied on delay, fading memories, document-retention issues and the fact that different individuals were said to be involved in the different matters.

The judge held that, for the purposes of strike-out, the claimant had a reasonably arguable basis for saying that the three matters could form part of conduct extending over a period within section 123(3) Equality Act 2010. He accepted that the claimant had said the discrimination was ongoing from the point at which she began seeking promotion, and he considered that the involvement of different individuals did not, by itself, prevent the complaints from being capable of constituting an ongoing state of affairs. He also treated the time-limit issue as one of whether there was no reasonable prospect of the tribunal deciding the claims were in time, rather than determining jurisdiction "by the back door".

Applying the reverse burden of proof and the authorities he cited, including Balls, Anyanwu, Chandhok, Igen, Madarassy, Hendricks, Aziz and Keeble, the judge concluded that the fuller information supplied by the claimant meant it could not be said that any of the three complaints had no reasonable prospect of success. He noted that the claimant had explained why she had delayed bringing the claims and that, even if the primary three-month period had passed, it remained arguable that a tribunal could find a just and equitable extension. He therefore refused the strike-out application. He also said he was not satisfied that the lower threshold for a deposit order was met, and that issue was dealt with in the separate orders sent with the judgment.