Mrs M Lewicka v Hartwell plc — 2020

The tribunal held that Mrs Lewicka was disabled within section 6 of the Equality Act 2010. It accepted that she had chronic low back pain/sciatica with substantial and long-term adverse effects on normal day-to-day activities, including walking, sitting, driving, lifting, food shopping and sleeping. The judge relied on the medical evidence, including MRI findings, injections, pain medication and rehabilitation, and found that the impairment had been ongoing for years and was already disabling by 2016, if not earlier.

On limitation, the tribunal noted that the Acas certificate was issued on 25 March 2019 and the claim was presented on 24 April 2019, so acts before 5 December 2018 were potentially out of time unless part of a continuing act. It struck out the race discrimination complaint and the direct disability discrimination and disability harassment complaints as out of time, and held that it would not be just and equitable to extend time. In reaching that conclusion, the judge considered the length of the delay, the claimant’s decision not to litigate after the grievance appeal, her contact with Citizens Advice Bureau, and the prejudice to the respondent in defending allegations from 2017.

Applying the continuing act approach drawn from Hendricks, Lyfar and Aziz, the tribunal held that the direct sex discrimination and sex harassment complaints were reasonably arguable as part of a continuing sequence linked to the grievance and later detriments, so those complaints were allowed to proceed. The judge also granted leave to amend to add victimisation, but refused leave to add equal pay and section 20 reasonable adjustments complaints under Selkent. No monetary remedy was assessed in this preliminary judgment.