Charles v Tesco Stores Ltd

In an appeal concerning limitation in a discrimination claim, the Employment Appeal Tribunal must assess whether the Employment Tribunal was entitled, on the material before it, to identify the acts complained of and their dates as falling outside the statutory time limit. A litigant in person’s case must be identified with care, but the tribunal may consider pleadings, schedules, witness statements, directions and the way the case was conducted, including assistance previously provided by legal representatives. A later date does not extend time unless the claimant sufficiently advanced an allegation that an act occurring on that date was itself discriminatory. Where the evidence supported complaints about delay and disparate treatment, but did not sufficiently identify withdrawal of compensation as the central discriminatory act, dismissal of the out-of-time claim disclosed no error of law.

The claimant, a forklift truck driver, brought a race discrimination claim concerning the handling and delay of a grievance against a white fellow employee. The Employment Tribunal concluded that the relevant acts occurred on or before 4 June 2010 and that the claim presented on 29 October 2010 was out of time. The claimant argued before the Employment Appeal Tribunal that the relevant date was 17 August 2010, when he said that an agreed or offered compensation payment had been withdrawn. The central issue was whether the Employment Judge had misunderstood the complaint advanced at the preliminary hearing.

1. Appeal dismissed. The Employment Judge was entitled to conclude that the claim concerned two matters: delay in dealing with the grievance and allegedly less favourable treatment compared with the white comparator. Those matters related to events occurring on or before 4 June 2010.
2. The Employment Appeal Tribunal’s jurisdiction was confined to errors of law. The question was whether, on the material before the Employment Judge and the representations made at the hearing, she was entitled to understand the claimant’s allegations in that way.
3. A tribunal must take care to identify the substance of a litigant in person’s complaint. It may nevertheless treat pleadings, schedules, chronologies, witness statements, case-management directions and the conduct of the hearing as relevant evidence of what was truly in issue. Here, the claimant had also had assistance from counsel and solicitors, and the documents prepared or relied upon consistently identified delay and disparate treatment.
4. The references to 17 August 2010 in the claim identified the date on which findings about earlier events were confirmed. They did not sufficiently identify a complaint about an event occurring on that date. Although the claimant later asserted that an agreement or offer of compensation had been withdrawn, the material before the Employment Judge did not establish that this was the central allegation of discrimination being pursued.
5. Accordingly, there was no identifiable error of law in treating the claim as out of time. The Employment Judge’s decision stood.

• Employment Appeal Tribunal: Appeal against the decision of Employment Judge Tribe dismissing the claim as out of time. The appeal was dismissed.
• Employment Tribunal: The claim was treated as concerning delay in resolving a grievance and disparate treatment, with the relevant acts occurring on or before 4 June 2010.