Bahous v Pizza Express Restaurant Ltd

Conduct forming part of an employer’s grievance process may constitute part of a continuing discriminatory act where it directly concerns, and continues, the original discriminatory treatment.

When deciding whether it is just and equitable to extend the time limit for a discrimination claim, the tribunal must consider the balance of prejudice. The merits may be relevant as part of that balancing exercise. A claimant should not ordinarily bear the consequences of a solicitor’s failure to commence proceedings in time. Although time limits are strictly applied and there is no presumption in favour of extension, a short delay may justify an extension where the claim has merit, the respondent suffers no prejudice and the delay resulted from legal advice.

The Employment Tribunal found that the claimant had suffered direct racial discrimination after he was suspended for failing to produce his passport. It held that the employer’s handling of his grievance formed part of the same continuing act, ending with a letter dated 24 December 2009.

The claim was lodged outside the primary limitation period. The Tribunal declined to extend time under section 68(6) of the Race Relations Act 1976, principally because the claimant had legal advice and had not acted promptly.

The claimant appealed against the refusal to extend time. The respondent cross-appealed on the continuing-act issue.

1. The respondent’s cross-appeal was dismissed. The grievance concerned the discriminatory passport demand and was raised on the day of suspension. The Tribunal was entitled to regard the grievance process as part of an ongoing situation, adopting the approach described by Mummery LJ in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96. The high threshold for perversity was not met, applying Yeboah v Crofton [2002] IRLR 634.

2. The claimant’s appeal was allowed. The balance of prejudice was a plainly material and significant factor in exercising the discretion under section 68(6) of the Race Relations Act 1976. The merits were not treated as a separate consideration, but formed part of the prejudice-balancing exercise. The claimant had established a good discrimination claim, whereas the respondent suffered no prejudice from the delay.

3. The Employment Tribunal had therefore erred in law by failing to take that significant matter into account. This was consistent with Baynton v South West Trains Ltd [2005] ICR 1730. The checklist in section 33(3) of the Limitation Act 1980 was useful but need not be addressed item by item, provided significant factors were considered, as explained in London Borough of Southwark v Afolabi [2003] IRLR 220 and Governing Body of St Albans Girls School v Neary [2010] IRLR 124.

4. The Tribunal also erred by treating the claimant’s legal representation as a reason against extension. Reliance on solicitors was plain, and the solicitor’s failure to commence proceedings in time should not be visited upon the claimant: Chohan v Derby Law Centre [2004] IRLR 685.

5. Using its powers under section 35(1) of the Employment Tribunals Act 1996, the EAT determined that time should be extended. The delay was short, the respondent suffered no prejudice and the established discrimination claim would otherwise have no remedy. The case was remitted to an Employment Tribunal, preferably a fresh Tribunal, to determine remedy.

• Employment Tribunal: found direct racial discrimination but rejected the claim as out of time and refused an extension under section 68(6) of the Race Relations Act 1976.
• Employment Appeal Tribunal: dismissed the respondent’s cross-appeal on continuing act, allowed the claimant’s appeal on limitation and remitted the case for determination of remedy.