Nageh v David Game College Ltd & Anor

At a preliminary hearing, a claim should not be rejected as out of time where the pleaded facts arguably disclose a continuing act, an act extending over a period, or a series of similar acts. The tribunal must consider the substance and context of the complaints, rather than reducing them to one isolated omission. During sickness absence, a failure to maintain contact may contribute to continuing discriminatory treatment, particularly where it forms part of a wider course involving replacement of the employee, removal of possessions, removal from staff records and a later assertion that employment had ended. Whether the incidents are linked and establish a continuing state of affairs is ordinarily a matter for evidence.

The claimant had been absent from work through stress and depression since February 2008. She alleged pre-dismissal race, sex, religion or belief discrimination and whistleblowing detriment, including failure to respond to her grievance, failure to contact her, replacement in her role, removal of possessions and removal from staff material.

The Employment Tribunal declared that the claimant had no reasonable prospect of establishing that the pre-dismissal complaints formed a continuing act or act extending over a period. The claimant appealed. The central issue was whether the Employment Judge had taken too narrow a view of the pleaded case when determining the limitation question.

1. Appeal allowed. The Employment Judge’s declaration was set aside and the matter was remitted to Employment Judge Tayler for consideration at a case management discussion.
2. The approach in Hendricks v The Commissioner of Police for the Metropolis [2003] IRLR 95 requires attention to the substance of the complaints and whether the alleged incidents are linked and evidence a continuing discriminatory state of affairs. The fact that an employee is absent through sickness does not necessarily prevent continuing discrimination, including through contact or lack of contact.
3. The corresponding limitation provisions in the Race Relations Act 1976, the Sex Discrimination Act 1975, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Rights Act 1996 require the tribunal to identify whether an act extends over a period or forms part of a relevant series. The later Equality Act 2010 replaced the earlier discrimination provisions.
4. Arthur v London Eastern Railway Ltd [2007] ICR 193 confirms that the tribunal should examine the circumstances surrounding alleged acts, including connections between perpetrators, organisation or concert, and the reasons for the acts. In appropriate cases, it may be preferable to hear the evidence and decide limitation questions in the round.
5. The claimant’s case was not merely that the respondents failed to contact her. Properly understood, it alleged that she was ignored and supplanted while her office and possessions were taken over, her role was filled, she was removed from staff lists and she was told only after making contact that her employment had ended. Those allegations arguably amounted to an act extending over a period or a series of acts or failures.

• Employment Tribunal: At a pre-hearing review on 22 December 2010, the Employment Judge declared that the claimant had no reasonable prospect of establishing that her pre-dismissal discrimination and whistleblowing complaints comprised a continuing act or act extending over a period.
• Employment Appeal Tribunal: The declaration was set aside and the matter was remitted to Employment Judge Tayler for further case management.