Lyfar v Brighton and Sussex University Hospitals Trust

An allegation is an act extending over a period where linked incidents evidence an ongoing discriminatory situation or continuing state of affairs. A policy, rule, practice, scheme or regime may demonstrate such a state of affairs, but is not an exhaustive requirement. The inquiry distinguishes that state of affairs from a succession of unconnected or isolated acts.

At a preliminary hearing, a claimant must establish a prima facie case that the allegations form such an act. The tribunal’s factual conclusion will stand unless it is one no reasonable tribunal could reach. Under section 68(6) of the Race Relations Act 1976, an extension of time is exceptional: the claimant must satisfy the tribunal that it is just and equitable.

The claimant, a black Afro-Caribbean principal clinical biochemist, brought 17 complaints of racial discrimination arising from an investigation into allegations that she had bullied and harassed a colleague, the ensuing disciplinary process, later management conduct, and the handling of her grievance.

At a pre-hearing review, the Employment Tribunal held that the first 12 complaints were out of time under section 68 of the Race Relations Act 1976. It found that the earlier investigation and disciplinary categories had ended before the relevant date, and declined a just and equitable extension. The Employment Appeal Tribunal dismissed the claimant’s appeal.

The central issue was whether the earlier and later allegations formed one act extending over a period and, if not, whether the tribunal should have extended time.

1. Appeal dismissed. Lord Justice Hooper, with whom Lord Justice Hughes and Lord Justice Thorpe agreed, held that the Employment Tribunal and Employment Appeal Tribunal had made no error of law.

2. The applicable approach was that in Hendricks [2002] EWCA Civ 1686. The question is whether the substance of the complaints discloses an ongoing discriminatory situation or continuing state of affairs, rather than separate and unconnected acts. A policy, rule, practice, scheme or regime is an example only; it is not a complete or constricting description of an act extending over a period. A claimant at a preliminary hearing must show a prima facie case. The formulation asking whether the complaints are capable of forming such an act was not materially different.

3. The tribunal had applied that approach. It was entitled, as a factual matter, to divide the allegations into four logical categories and to find that the investigation and disciplinary process ended when the disciplinary charges were dismissed on 11 October 2004. The later allegations concerning management conduct and the grievance did not compel a finding of one continuing state of affairs. The claimant had not made the overwhelming case required to show that this factual conclusion was perverse.

4. The court also upheld the refusal to extend time under section 68(6) of the Race Relations Act 1976. There is no presumption in favour of an extension. The claimant had given no explanation for failing to present the earlier complaints in time. The tribunal had considered the nature of the allegations, procedural shortcomings acknowledged by the respondent, the balance of prejudice, and the fact that the earlier matters could still be adduced as evidence where relevant. Its discretionary conclusion was open to it.

5. Although a pre-hearing review will often be used to decide a time point, that practice does not determine whether it should be decided at that stage in an individual case. Oral evidence may be advisable where required to resolve the issue.

• Court of Appeal (Civil Division): dismissed the claimant’s appeal in [2006] EWCA Civ 1548.
• Employment Appeal Tribunal: His Honour Judge McMullen QC, sitting alone, dismissed the claimant’s appeal from the Employment Tribunal in UKEAT/0651/05/ZT.
• Employment Tribunal: at a pre-hearing review, held the first 12 complaints out of time and declined to extend time on just and equitable grounds.