Novak v Phones 4U Ltd

At a preliminary hearing, a claimant need show a good arguable or prima facie case that alleged discriminatory acts formed a continuing act; the claimant need not prove the issue to a higher standard. Whether conduct is continuing requires an evaluative assessment of its links in persons, subject matter and time. A temporal gap does not necessarily break the continuity where the same people and subject remain connected.

Time runs from the act complained of, or from the end of conduct extending over a period. Knowledge of the act does not postpone time. A tribunal must decide whether the pleaded incidents form one continuing act before treating them as out of time.

The claimant, a store manager who had suffered an accident at work, alleged disability and nationality discrimination arising from colleagues’ Facebook postings, a defaced workplace safety notice and a photograph. He brought claims in September 2010 and December 2011.

At a pre-hearing review, the Employment Judge held that the first sequence of Facebook comments was a continuing act, but held that it was not linked to a later Facebook sequence. The Judge also treated other allegations as out of time and declined to extend time.

The claimant appealed the jurisdictional rulings. The central issue was whether the allegations were sufficiently connected to constitute a continuing act, so that time ran from the final posting.

1. Appeal allowed. The Employment Judge’s jurisdictional decision was set aside and the relevant time-limit issues were remitted to the Employment Tribunal.

2. At a preliminary hearing, the claimant needed only to establish a good arguable, or prima facie, case that there was a continuing act. The Judge had effectively required a higher standard. The appropriate inquiry was whether there was something properly to be heard in support of the alleged continuing act.

3. The Judge had erred in finding that the two Facebook sequences involved different people and a different subject matter. It was accepted that the relevant contributors overlapped and that both sequences concerned the controversy arising from the claimant’s accident and grievance. The seven-week interval, within an overall period of 17 weeks, did not prevent the treatment from being continuing when the people and subject matter were connected.

4. The corrected findings also required reconsideration of the defaced safety notice and the earlier photograph. There was an arguable connection between those incidents and the Facebook postings. The first claim was therefore in time in respect of both Facebook sequences and the safety-notice allegation. It was reasonably arguable that the second claim concerning the photograph was also in time.

5. The EAT applied the rule that time runs from the doing of the act, rather than its communication to the victim: Virdi [2006] UKEAT/0373/06. It also applied Afolabi [2003] ICR 800 on limitation for acts, continuing acts and omissions. It was unnecessary to decide whether simply leaving a Facebook post or physical notice visible is itself a continuing act. The remaining issues, including the respondent’s alleged omission to act, were remitted for a full hearing.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and set aside the Employment Judge’s jurisdictional ruling: [2012] UKEAT 0279_12_1409.
• Employment Tribunal, Birmingham: At a pre-hearing review, held parts of the discrimination claims out of time, while leaving the respondent’s alleged omission to act for the full hearing.