MR XX v UKBA (Jurisdictional Points : Extension of time: just and equitable)

A complaint may allege a continuing act where it is reasonably arguable that apparently disparate incidents form an ongoing situation or state of affairs. A tribunal should not determine that question at a preliminary hearing where its resolution requires factual findings about links between the incidents.

When deciding whether to extend time on a just and equitable basis, a tribunal must address the correct chronology and the claimant’s material explanations for delay. Issue estoppel prevents relitigation only of an issue necessarily determined previously. It does not bar a disability claim founded on a materially changed and alterable combination of impairments.

The Claimant appealed from a Reading Employment Tribunal decision, sent to the parties on 7 July 2011, made at a pre-hearing review. The Tribunal held that his disability-discrimination and victimisation complaints were out of time, declined to extend time, and held that issue estoppel barred the claim. It did not decide whether he was disabled.

The claim concerned a sequence of alleged refusals of promotion, transfer and work opportunities, together with grievances between 2008 and 2010. The Claimant relied on dyslexia, dyspraxia and depression. He contended that the events formed a continuing act and that depression materially changed the disability issue previously decided against him.

1. Appeal allowed. The Tribunal’s conclusion that there was no continuing act could not stand. The correct inquiry was whether it was reasonably arguable that the alleged incidents formed an ongoing situation or continuing state of affairs, rather than whether they amounted to a policy, rule, scheme, regime or practice in a literal sense.

2. The claim form, the repeated alleged refusals by common managers, the consolidated grievance, and the Respondent’s own request for a stay while it investigated related grievances all supported an arguable continuing state of affairs. At the least, the Respondent was investigating that alleged state of affairs during the three months before the claim was lodged. The historical reach of the alleged continuing act required findings of fact at a full merits hearing.

3. The Tribunal had also erred in its just-and-equitable analysis. It failed to address evidence that complaints and grievance activity continued into April 2010, and failed to engage with the Claimant’s explanation that he promptly filed the prescribed form once told that his initial filing was defective. It also did not address the ongoing grievance procedure, the Respondent’s proposed stay, or other relevant considerations.

4. Issue estoppel did not bar the claim. The earlier adjudications concerned dyslexia and, subsequently, dyslexia and dyspraxia. The present claim relied on the aggregate effect of dyslexia, dyspraxia and depression, supported by later medical material. Disability is assessed at the material time, and an alterable status may change. The Tribunal wrongly assessed the merits and severity of the new condition instead of asking whether the disability issue was identical to that necessarily determined previously.

5. The case was remitted to a differently constituted Employment Tribunal for a full hearing of the continuing-act issue, disability and the substantive claim.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal and remitted the whole claim to a differently constituted Employment Tribunal.
• Employment Tribunal, Reading: At a pre-hearing review, held the claims out of time, refused a just-and-equitable extension, and held that issue estoppel deprived it of jurisdiction.