Alam v London Probation Trust

For an allegation to be treated as an act extending over a period under section 68 of the Race Relations Act 1976, the claimant must show a reasonably arguable link between the complaints sufficient to constitute an ongoing situation or state of affairs. A succession of isolated acts does not suffice.

At a pre-hearing review, it was open to a tribunal to find that alleged earlier harassment and a dismissal were separate strands where the dismissal was decided by persons not alleged to have been influenced by discrimination, and no pleaded case alleged that the decision was tainted by discriminatory evidence. The exercise of the just and equitable extension discretion will not be disturbed absent perversity.

The appellant, a probation prosecutor, presented claims of race discrimination and unfair dismissal after her employment was terminated on 25 November 2010. Her dismissal-related claims were in time, but she also alleged numerous earlier acts of racially motivated harassment from 2005 onwards.

At a pre-hearing review, the Employment Tribunal held that there was no reasonable prospect of establishing a continuing act connecting the earlier allegations with the dismissal. It also refused a just and equitable extension of time under section 68 of the Race Relations Act 1976.

The appeal concerned whether the earlier allegations and dismissal formed one continuing act, and whether the refusal to extend time was perverse.

1. Appeal dismissed. The Employment Tribunal correctly applied section 68(7)(b) of the Race Relations Act 1976 and the approach in Hendricks. The inquiry is whether the complaints disclose an ongoing situation or continuing state of affairs, rather than a succession of unconnected or isolated acts.

2. At a pre-hearing review, the claimant must establish a prima facie case, or a reasonably arguable basis, for contending that the complaints are sufficiently linked to constitute continuing acts. The Tribunal was entitled to assess that question by reference to the pleaded case and the revised schedule of allegations.

3. On the pleaded allegations, the earlier harassment by the appellant’s managers and the later dismissal were distinct strands. The dismissal arose from a disciplinary process involving an investigator, disciplinary panel and appeal decision-maker against whom no allegation of discriminatory influence or tainted evidence was pleaded. Although a decision-maker may in principle be affected by discriminatory material supplied by another, that possibility did not assist where no such case had been advanced.

4. The Tribunal’s conclusion that there was no causal link between the earlier allegations and dismissal was plainly open to it. An appellate challenge to that evaluative conclusion required an overwhelming perversity case, which was not made out.

5. The Tribunal also properly exercised its discretion under section 68(6). It considered the prejudice to the appellant from excluding earlier harassment claims, the mitigation afforded by her timely dismissal claims, the effect of delay on the cogency of evidence, and the additional time and cost of determining historic allegations as substantive claims. Earlier matters could still be adduced as controlled background evidence where relevant. The refusal to extend time was not perverse.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Tribunal’s pre-hearing review decision.
• Employment Tribunal: At a pre-hearing review, in reasons sent on 4 October 2011, held that the pre-dismissal harassment allegations were out of time and declined a just and equitable extension under section 68 of the Race Relations Act 1976.