Royal Bank of Scotland Plc v McLelland

A discrimination claim may allege a continuing act where later grievance proceedings are said to continue the discriminatory treatment complained of. At a pre-hearing review, the question is whether the claimant has a reasonable prospect of establishing that connection on the evidence, not whether the tribunal should finally determine the issue without hearing the full case. Pleadings must give the respondent fair notice of the complaints, but an expressly pleaded discrimination complaint may be clarified by further particulars. Where limitation and the merits are listed together, the tribunal may appropriately determine the time-bar issue separately if doing so avoids unnecessary preparation and expense.

Ms McLelland brought a sex-discrimination claim against her former employer after an extended internal grievance process concluded in June 2009. The Employment Tribunal considered that the grievance process could form part of a continuing discriminatory act and allowed the claim to proceed to a full hearing, while reserving the final limitation and just-and-equitable questions.

The employer appealed, contending that the grievance process was not a pleaded discriminatory act and that the claim was out of time. The central issue was whether the Employment Tribunal had erred in permitting the continuing-act issue to proceed for determination on full evidence.

1. Appeal dismissed. The Employment Tribunal had not erred in law or acted perversely in concluding that the conduct of the grievance process could constitute a continuing act of sex discrimination extending to its conclusion.
2. The requirement for clear pleading and fair notice was accepted. Authorities including Olasehinde v Panther Securities PLC, Chapman v Simon, Stockton On Tees Borough Council v Aylott, Ladbrokes Racing Ltd v Traynor and Ali v Office of National Statistics did not prevent the claim proceeding. The ET1 expressly identified sex discrimination and alleged less favourable treatment than comparable colleagues. Its later paragraphs were capable of alleging that the same discriminatory treatment continued through the grievance process and its unsatisfactory outcome.
3. At a pre-hearing review, the tribunal was not required finally to decide whether the grievance process was part of the continuing act. It had only to consider whether the claimant had a real or reasonable prospect of proving that proposition before the full tribunal. The ultimate decision remained for the tribunal hearing the evidence.
4. The argument concerning a just-and-equitable extension of time could not be determined on the material before the Appeal Tribunal. The principles referred to in British Coal Corporation v Keeble, Robertson v Bexley Community Centre and Chief Constable of Lincolnshire Police v Caston required application to the specific facts.
5. The Employment Tribunal was invited, without any direction being made, to consider listing the limitation issue as a separate preliminary issue, thereby avoiding the costs of preparing for the substantive hearing if the claim were ultimately time-barred.

• Employment Appeal Tribunal: dismissed the employer’s appeal from the Employment Tribunal’s preliminary decision that the sex-discrimination claim could proceed to a full hearing.
• Employment Tribunal: held that the grievance process could amount to part of a continuing act, subject to determination on full evidence, and reserved the limitation and just-and-equitable issues.