EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: S/4102617/2018 Held in Glasgow on May 2018 Employment Judge: lain F. Atack Kamaljeet Singh Advocate General for Scotlandas representing the Ministry of Defence v Represented by: In Person — 2018

The claimant, a corporal in 3 Rifles, brought claims of direct race discrimination, disability discrimination, and indirect race discrimination. This judgment determined only the preliminary issues on time limits and jurisdiction. The tribunal found that the direct race discrimination complaint related to the Summary Hearing on 23 June 2017, when the claimant was convicted of failing to attend duty and fined 8 days' pay. It accepted that the later discussion with Major Raw about time off to consult a solicitor did not amount to a continuing act of direct discrimination, because the request was granted and there was no less favourable treatment.

On limitation, the tribunal held that the direct race discrimination claim was brought outside the 6-month period in section 123(2) of the Equality Act 2010. It rejected the argument that there was a continuing act up to the Summary Appeal Hearing on 21 September 2017, and relied on the principle that the relevant act was the one-off decision on 23 June 2017. Applying the just and equitable discretion, the tribunal considered the length and reasons for delay, the absence of a satisfactory explanation for not presenting the claim earlier, the steps taken to obtain advice, and the comparative prejudice to the parties. It decided not to extend time and dismissed the direct race discrimination claim.

The disability discrimination complaint was dismissed for want of jurisdiction. The tribunal held that paragraph 4 of Schedule 9 to the Equality Act 2010 means that the disability provisions do not apply to service in the armed forces, and the claimant's complaint arose from his service. The tribunal therefore said it did not matter whether the ET1 lacked specification, because the complaint could not be heard at all. The indirect race discrimination claim was not determined in this judgment and was left to proceed to a further preliminary hearing.