Charles v Tesco Stores Ltd

Whether a discrimination complaint is in time depends on identifying the act complained of and its latest date. An Employment Tribunal is entitled to determine the substance of a litigant in person’s case from the claim documents, witness evidence, directions, schedules and the way the hearing was conducted. Legal representation before the hearing may also illuminate the issues actually advanced.

Where the material indicates complaints about delay and disparate treatment, but does not sufficiently identify the withdrawal of a compensation offer or failure to honour an agreement as the central discriminatory act, the Tribunal may treat the claim as relating to earlier events and find it out of time.

The claimant, a forklift truck driver employed by Tesco, presented a race discrimination claim received on 29 October 2010. The Employment Tribunal concluded that the complaints concerned events occurring on or before 4 June 2010 and were therefore out of time. The claimant argued that he had also complained about the withdrawal of a compensation offer, or failure to honour an agreement, at a meeting on 17 August 2010, which would have placed the claim within time.

The appeal concerned whether the Employment Judge had misunderstood the complaint advanced and had thereby erred in law in determining the limitation issue.

1. Appeal dismissed. The Employment Appeal Tribunal’s jurisdiction arose only if an error of law could be demonstrated. The question was whether the Employment Judge was entitled, on the material before her, to conclude that the complaints related to 4 June 2010 or earlier.
2. A Tribunal must take care to identify what a litigant in person is complaining about. It may, however, consider the claim form, directions, schedules, chronology, witness statement, evidence and the conduct of the hearing in deciding what issues were actually advanced. Earlier assistance from counsel and solicitors may properly illuminate the substance of the case.
3. The material before the Employment Judge identified two complaints: delay in dealing with the grievance and less favourable treatment compared with the white comparator, Mr Andrews. The claimant’s documents and the witness statement read at the hearing supported that understanding.
4. Although there had apparently been some reference to settlement discussions and the 17 August meeting, there was insufficient material to show that withdrawal of a compensation offer, or failure to honour a compensation agreement, was being advanced as the central act of discrimination. The Employment Judge was therefore entitled to find the claim out of time. No identifiable error of law was established.

• Employment Tribunal: Employment Judge Tribe determined that the complaints concerned events occurring on or before 4 June 2010 and were out of time.
• Employment Appeal Tribunal: The appeal against that decision was dismissed.