Khetab v AGA Medical Ltd & Ors

Where a discrimination claim alleges a series of connected incidents, a continuing act need not be pleaded in formal or technical words. The question is whether the particulars, read as a whole, give the respondent and the tribunal sufficient notice that a continuing-act case may be advanced. At a preliminary hearing, the tribunal may consider whether a prima facie link is shown. Where that issue depends on evidence which will also be required for the merits, it may be determined at the full hearing. A tribunal’s discretionary refusal to extend time on just and equitable grounds will not be disturbed absent an error of law.

The claimant alleged race and religious discrimination, harassment, victimisation, constructive dismissal and related employment claims against his employer and individual respondents. The respondents raised a limitation defence, contending that earlier incidents were isolated and did not form part of a continuing act.

At a pre-hearing review, the Employment Tribunal held that the continuing-act contention had not been pleaded, refused an amendment, and declined to extend time on just and equitable grounds. The claimant appealed, principally challenging the pleading ruling and the refusal to determine the continuing-act issue at the full merits hearing.

1. The appeal was allowed in part. The continuing-act contention was sufficiently raised by the ET1 particulars of claim, read as a whole. No amendment was necessary. The purpose of pleadings is to ensure that the opposing party and tribunal understand the case and that the opponent has a proper opportunity to meet it.
2. Applying the approach in Commissioner of Police of the Metropolis v Hendricks [2003] IRLR 96, the relevant question was whether the respondents were responsible for an ongoing situation or continuing state of affairs in which the claimant received less favourable treatment or suffered harassment on racial or religious grounds.
3. The approach in Aziz v First Division Association (FDA) [2010] EWCA Civ 304 required a prima facie link to be shown at a preliminary hearing, while the existence of that link in fact was for determination on the evidence at the full merits hearing. Since the allegations also formed part of the constructive-dismissal case, the evidence would in any event have to be heard at that hearing.
4. The Employment Judge’s refusal to extend time on just and equitable grounds was upheld. The discretion was broad, and there was no error of law justifying interference, consistently with Hutchison v Westward Television Ltd [1977] ICR 279.
5. The continuing-act issue was remitted to the Employment Tribunal hearing the full merits. If no continuing act were established, complaints relating to discrimination before 6 May 2009 would remain out of time because the refusal to extend time stood. The statutory grievance issue under section 32 of the Employment Act 2002 remained undecided.

• Employment Tribunal: At a pre-hearing review, held that no continuing act had been pleaded, refused an amendment, and declined to extend time.
• Employment Appeal Tribunal: Set aside the first two rulings, upheld the refusal to extend time, and remitted the continuing-act issue to the tribunal hearing the full merits.