Kaur v The City Of Edinburgh Council & Ors

A discrimination claim should rarely be struck out before evidence has been heard. Where the pleadings disclose a reasonably arguable case that separate acts formed part of a continuing discriminatory state of affairs, the claim should proceed to an evidential hearing. A tribunal must not decide time-bar issues on disputed facts by treating alleged acts as isolated events or by assuming that an appeal body was independent of the employer. Whether the acts were connected, discriminatory and within time remains for determination after the evidence and any proper inferences have been considered.

The claimant brought a race discrimination claim against the City of Edinburgh Council and individual respondents. Her ET1, presented on 22 June 2010, contained 123 paragraphs and alleged continuing discrimination, institutional racism, a glass ceiling and discriminatory treatment in the handling of her grievance.

Following a pre-hearing review, the Employment Tribunal held that only the allegation in paragraph 123 and specified grievance-related complaints could proceed. It struck out the remaining complaints as out of time. The claimant appealed, arguing that the pleadings disclosed a continuing act extending to the Personnel Appeals Committee’s decision in March 2010. The central issue was whether the claims could properly be struck out as time-barred before evidence had been heard.

1. The appeal was upheld. The claims struck out by the Employment Tribunal were remitted to that Tribunal to proceed as accords.
2. In discrimination proceedings, tribunals should exercise great caution before striking out a claim without hearing evidence. Such claims are fact-sensitive and may depend on factual findings and inferences drawn from observed evidence. The guidance in Anyamu v South Bank Students Union and Others [2001] IRLR 305 and Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 required particular care.
3. The relevant question at the preliminary stage was whether the pleadings disclosed a reasonably arguable basis for contending that the alleged acts formed a continuing act extending to March 2010. It was not open to the Tribunal to determine jurisdiction conclusively where facts remained disputed and no evidence had been led.
4. Hendricks v Commissioner of Police for the Metropolis [2003] ICR 530 showed that the analysis should not focus solely on whether a particular policy could be identified. The issue was whether the employer was responsible for an ongoing situation or state of affairs involving less favourable treatment.
5. The Employment Tribunal erred by examining the specific allegations in isolation and by accepting, without evidence, that the Personnel Appeals Committee was wholly independent of the Council. The pleaded overarching allegation was that the individual acts were tainted or driven by institutional racism.
6. The EAT did not determine that the claimant’s case was well founded. If the acts were proved to be connected as a continuing discriminatory act, the claim would not be time-barred. If they were separate and unconnected, or separated by the November 2009 grievance decision and the March 2010 appeal decision, time-bar consequences might follow. Those issues had to be decided after an evidential hearing.

• Employment Tribunal, Edinburgh: Judgment registered on 16 February 2011. It allowed only specified complaints to proceed and struck out the remaining complaints as out of time.
• Employment Appeal Tribunal: Appeal upheld. The struck-out claims were remitted to the Employment Tribunal for an evidential hearing and further case management as appropriate.