Ms Sameena Bashir v London Borough of Barking and Dagenham and 3 others — 2023

The preliminary hearing considered limitation, whether time should be extended, and whether the pleaded claims should be struck out for having no reasonable prospect of success. The tribunal recorded that the claims still pursued were an AWR case against the 1st respondent as hirer, direct race discrimination, sexual harassment, victimisation, and automatic unfair dismissal under section 103A ERA. Early Conciliation began on 1 June 2022, after the primary three-month period for complaints arising on or before 1 March 2022 had expired on 31 May 2022, and the ET1 was presented on 6 August 2022.

On limitation, the tribunal found that all but one of the acts complained of occurred on or before 1 March 2022 and were therefore out of time. It was not persuaded that waiting for all Early Conciliation processes to conclude explained the delay, and it found no sufficient basis to extend time under section 123 EqA or to conclude under section 111 ERA that it had not been reasonably practicable to present the automatic unfair dismissal claim in time. The tribunal also found that the pleaded events were discrete and separable rather than part of a course of conduct extending limitation.

On the AWR and employment status issues, the tribunal accepted that the 1st respondent was the end user of the claimant's services and could be described as a hirer, but held that Regulation 14 AWR did not provide the pleaded vicarious liability for the acts of the other respondents. It further found, on the claimant's own pleading, that she did not plead that she was an employee of R1 or R2, and that she did not plead facts establishing R1 or R2 as principals or agents under sections 109 and 110 EqA in relation to R3 and R4. It therefore concluded that the claims against R1 and R2 had no reasonable prospect of success.

The tribunal treated the allegation concerning 2 March 2022, said to be an act of harassment by R4 alone, as potentially in time but separate from the earlier allegations. It held that this allegation, when considered alone, was thinly pleaded and disclosed no triable cause of action, so it was struck out under Rule 37. The judgment recorded no remedy award because all claims were dismissed or struck out.