Igboji v Tesco Stores Ltd & Anor

An alleged continuing consequence of a decision does not, without a later review or a fresh omission arising when a decision should have been made, restart the limitation period. A claimant cannot revive an out-of-time complaint by repeatedly relying on the same refusal or inactivity. A just and equitable extension of time requires particular circumstances; there is no presumption in favour of extending time. The Employment Appeal Tribunal may consider new evidence, but applications should ordinarily be addressed first by the Employment Tribunal. A claim by a client against solicitors instructed to conduct the client’s litigation, based only on the client providing instructions and assistance, is misconceived and cannot establish an employment relationship.

The claimant appealed against preliminary decisions of an Employment Tribunal striking out race-discrimination complaints against Tesco and associated individuals as out of time and having no reasonable prospect of success. The complaints concerned Tesco’s alleged failure to record his doctoral title and its handling of an application for a regional manager position in 2007. A separate claim against his solicitors, Ellisons, was struck out as misconceived, and a costs order was made against him.

The appeals followed unsuccessful review applications and sift decisions refusing permission to proceed. The central issues were whether the complaints involved continuing acts or deliberate omissions, whether new evidence justified intervention by the EAT, and whether the costs order was within the Employment Tribunal’s discretion.

1. Appeal against strike-out of the Tesco claims dismissed. The Employment Tribunal was entitled to treat the alleged failures concerning the claimant’s title and job application as decisions or deliberate omissions made in 2007. Their continuing consequences did not make them continuing acts. Under Race Relations Act 1976, section 68(7), time ran from the relevant decision or omission, and the complaints presented nearly three years later were out of time.
2. A later application or refusal does not restart time where it merely repeats the original decision. Time may start again where there is a genuine reconsideration, as explained in Lyfar [2006] EWCA 1548. The Employment Judge was entitled to assess how the claim had been put and to conclude that no reconsideration or later omission had been identified.
3. The discretion under section 68(6) was correctly exercised. There is no presumption that an extension is just and equitable. The claimant identified no particular circumstance, reason or incapacity justifying the substantial delay.
4. The EAT’s approach to Rule 3 applications, stated in Haritaki v South East England Development Agency [2008] IRLR 945, had been approved in Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240. The appeal disclosed no reasonable grounds with a real prospect of success.
5. The EAT considered the proposed new evidence but found that it did not satisfy the principles in Ladd v Marshall [1954] 1 WLR 1489. In accordance with Aslam v Barclays Capital Services & Ors UKEAT/0405/10/ZT and Adegbuji v Meteor Parking Ltd UKEATPA/1570/09/LA, such material should ordinarily be considered first by the Employment Tribunal.
6. Appeal against the costs order dismissed. The claim against Ellisons was misconceived. Providing instructions and assistance to solicitors instructed by the claimant did not make the claimant their employee. The costs order was within the Employment Tribunal’s discretion and was correct.

• Employment Appeal Tribunal: dismissed the appeals against the strike-out decisions and the costs order.
• Employment Tribunal: struck out the race-discrimination claims against Tesco and associated respondents as out of time and misconceived, struck out the claim against Ellisons as misconceived, and ordered the claimant to pay Ellisons’ costs.
• Review: the Employment Judge refused the claimant’s review applications.
• EAT sift: HHJ Peter Clark concluded that the appeals had no reasonable prospect of success.