Mr DB Gabel v Represented by: Mr J Murphie - Advocate Secretary Of State For Work And Pensions and 1 other — 2018

The tribunal held that Mr Gabel's Equality Act claims were presented after the three-month time limit in section 123 and that they were therefore out of time. It rejected the argument that the continuing existence of the Diving at Work Regulations 1997, the approved code of practice, and the May 2011 Protocol amounted to conduct extending over a period. The tribunal treated the relevant events as discrete rejections by regulatory bodies, and relied in particular on Rovenska and Chaudhary, distinguishing the employment-policy cases relied on by the claimant.

On the facts, the claimant knew from March 2012 that the respondents' position was that he could not act as a diving supervisor at an HSE diving school because he did not hold an HSE-approved qualification. Further correspondence in November 2014, February 2015 and September 2015 repeated that position. The tribunal found that, absent any continuing act, the latest possible discriminatory act by the second respondent was 11 February 2015 and by the first respondent was September 2015, both well outside the limitation period when the claim was presented on 5 April 2018.

The tribunal then considered whether it was just and equitable to extend time. It accepted that the claimant had pursued the matter through his MP, the Parliamentary Ombudsman, solicitors, legal aid and a Court of Session action, but found that he had been aware of a potential Equality Act claim from 2012 and that no Tribunal claim was brought until after the Court of Session judgment of 10 November 2017 and ACAS early conciliation in March 2018. Applying the authorities on discretion to extend time, including Robertson, Keeble, Marshall and Morgan, the tribunal refused to extend time, with the result that the claim was dismissed and no merits or remedy determination was made.