Rodrigues v Co-Operative Group Ltd

For time-limit purposes, alleged discriminatory acts amount to conduct extending over a period only where the facts establish a link between them which demonstrates a continuing discriminatory state of affairs. A policy, practice or discriminatory culture need not be proved, but separate and distinct acts do not suffice.

An extension of time on the just and equitable ground is exceptional. The claimant must provide a satisfactory explanation for delay. Strike-out for no reasonable prospects remains a rare remedy in discrimination claims. It may nevertheless be justified where evidence properly heard at a pre-hearing review shows that the claimant's essential evidence has no reasonable prospect of acceptance.

A Portuguese contract cleaner alleged race discrimination by the principal for whom he worked. His claim concerned several alleged incidents between February and April 2011.

The Employment Tribunal held that all allegations except one said to have occurred on 17 April 2011 were out of time. It found that the alleged incidents were separate acts, declined a just and equitable extension, and struck out the surviving allegation for having no reasonable prospects of success.

The claimant appealed, contending that the allegations formed continuing conduct, that the Tribunal wrongly attributed delay by the Citizens' Advice Bureau to him, and that it had impermissibly determined disputed facts at a pre-hearing review.

1. Appeal dismissed. The Employment Judge had correctly held that the earlier allegations were time barred under section 123 of the Equality Act 2010.
2. The statutory expression conduct extending over a period requires a factual link between individual acts which establishes a continuing discriminatory state of affairs. Following Hendricks v Commissioner of Police for the Metropolis, [2003] IRLR 96, a claimant need not prove a discriminatory policy, practice or culture. The Tribunal had, however, made no findings capable of linking the alleged acts. The fact that one alleged perpetrator featured in many allegations did not itself establish a continuing course of conduct.
3. The refusal to extend time on a just and equitable basis disclosed no error. Time limits are strict and jurisdictional, with no presumption of relaxation. The claimant had not explained why no step was taken for about seven weeks after advice had first been sought. The Employment Judge did not simply visit any failing by the Citizens' Advice Bureau upon the claimant.
4. Strike-out was properly available in the exceptional circumstances. Tayside Public Transport Ltd (t/a Travel Dundee) v Reilly, [2012] CSIH 46, confirms that a serious dispute on crucial facts will ordinarily require a full hearing. Here, however, sworn evidence had necessarily been heard to decide time bar. The Employment Judge was entitled to use the resulting findings when assessing prospects. The claimant's limited English, uncertainty, and serious deficiencies in his evidence meant that his proof of the sole surviving allegation had no reasonable prospect of acceptance. This was not an impromptu trial undertaken solely to determine strike-out.

• Employment Appeal Tribunal: appeal dismissed.
• Employment Tribunal, Edinburgh: judgment registered on 14 December 2011. The Tribunal held most allegations time barred, refused a just and equitable extension, and struck out the remaining allegation.