Iteshi v London Borough of Hammersmith and Fulham

Fresh evidence may be admitted on appeal where it could not reasonably have been adduced earlier, is relevant and would probably have materially influenced the result, and is apparently credible. Separate applications for employment by a non-employee will not ordinarily constitute a continuing act for limitation purposes where they arise from distinct recruitment exercises. An employment discrimination claim may be struck out under rule 18(7)(b) where, on accepted evidence, it has no reasonable prospect of success. This power remains available in discrimination cases, although it must be exercised cautiously and for clear reasons.

The claimant, a black Nigerian barrister who had not completed pupillage, brought race discrimination complaints concerning three unsuccessful applications to the respondent local authority. The Employment Tribunal found that the first two complaints were not part of a continuing act and that all three claims were out of time. It also held, alternatively, that the claims had no reasonable prospect of success and struck them out under rule 18(7)(b).

On review, an automated tribunal response showed that the third claim had in fact been received in time. The claimant appealed the preliminary hearing judgment. The respondent’s cross-appeal concerned the admission of that fresh evidence. The central issues were whether the evidence should be admitted, whether the applications formed a continuing act, and whether the remaining in-time complaint was properly struck out.

1. Fresh evidence. The cross-appeal necessarily failed because the claimant appealed only the preliminary hearing judgment, not the separate review decision. The automated response was admitted. Applying the principles in Ladd v Marshall, as adopted in Wileman v Minilec Engineering Ltd, it was credible and materially relevant. Although the claimant possessed it before the hearing, the circumstances justified admission because he could reasonably have expected the tribunal administration to record the receipt date accurately.
2. Limitation and continuing act. Admission of the evidence established that the third complaint was presented in time. The finding that it was not just and equitable to extend time was not appealed. The Employment Tribunal was entitled to conclude that the three unsuccessful applications did not amount to a continuing act under section 68(7)(b) of the Race Relations Act 1976. The claimant was not an employee, and the applications arose from entirely separate recruitment rounds. The approach applicable to an ongoing employment relationship, explained in Metropolitan Police Commissioner v Hendricks, did not govern. The authorities concerning job applicants, including Choudhary v Royal College of Surgeons, Rovenska v General Medical Council and Tyagi v BBC World Service, supported that conclusion.
3. Strike-out. The power to strike out a discrimination claim under rule 18(7)(b) exists in appropriate circumstances, despite the caution identified in Anyanwu v South Bank Students Union and Ezsias v N Glamorgan NHS Trust. The Tribunal had accepted evidence that the decision-maker was unaware of the claimant’s race when rejecting his application. That finding alone justified the conclusion that the complaint had no reasonable prospect of success. The evidence also showed that applicants with LPC or BVC qualifications were rejected as overqualified because of concerns about retention. The criterion distinguished potential comparators who had been shortlisted without those qualifications, and the Tribunal was entitled to conclude that any indirect discrimination claim could not realistically overcome the respondent’s justification. The appeal and cross-appeal were dismissed.

• Watford Employment Tribunal: At a preliminary hearing on 9 June 2010, the Tribunal held that the claims were out of time, that the earlier applications did not form part of a continuing act, and alternatively struck out the claims under rule 18(7)(b). The review application was summarily dismissed on 15 July 2010.
• Employment Appeal Tribunal: Fresh evidence was admitted, but the appeal and cross-appeal were dismissed.