Chikwe v Mouchel Group Plc & Anor

An employee need not expressly plead an act extending over a period. However, the ET1, read as a whole, must plead facts capable of establishing a linked continuing discriminatory state of affairs. An Employment Tribunal cannot determine an unpleaded discrimination complaint, and witness evidence cannot replace an amendment to the pleading.

A just and equitable extension of the discrimination time limit is exceptional. The claimant must persuade the Tribunal that it is just and equitable. An appellate court will interfere with the exercise of that discretion only for an error of law or principle, or where the decision was plainly wrong.

The Claimant appealed from the Watford Employment Tribunal’s decision, following a pre-hearing review, that his race and age discrimination claims had been presented out of time and that time should not be extended.

The pleaded allegations concerned capability proceedings, a capability meeting and a written warning. The Claimant contended on appeal that the subsequent handling and outcome of his internal grievance formed part of a continuing discriminatory act, bringing his ET1 within time. He also challenged the refusal of a just and equitable extension, relying on ill health, alleged trade-union advice and prejudice.

The central issues were whether the grievance allegations had been pleaded as part of a continuing act and whether the Employment Judge had erred in declining to extend time.

1. Appeal dismissed. There was no error of law in the Employment Tribunal’s conclusion that the claims were out of time and that it was not just and equitable to extend time.

2. A continuing act need not be expressly labelled in an ET1. Nonetheless, the pleading must set out sufficient facts to identify a series of racially motivated incidents continuing into the relevant period. The pleaded case, even with the agreed issues, was confined to the earlier capability and warning matters. It contained no allegation that the grievance process was discriminatory.

3. Following London Borough of Southwark v Afolabi, the Tribunal could not find a discrimination complaint which had not been pleaded. Witness evidence and oral submissions could not substitute for a pleading. The Claimant had been represented and did not seek permission to amend to add a complaint concerning the grievance procedure. The Employment Judge was therefore not obliged to search for a later discriminatory act beyond the pleaded case.

4. The Employment Judge had correctly directed herself on the just and equitable discretion. There is no presumption in favour of extending time; it is the exception rather than the rule. The Judge was entitled to reject the asserted trade-union advice on the evidence, to find that the Claimant’s health did not prevent a timely ET1 given his detailed grievance submissions, and to weigh the respective prejudice.

5. The EAT could not reweigh disputed evidence or interfere merely because it might have reached a different view. The exercise of discretion was not plainly wrong.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Watford Employment Tribunal’s pre-hearing-review decision that the discrimination claims were out of time and that no just and equitable extension should be granted.
• Employment Tribunal at Watford: On 20 June 2011, with reasons dated 12 August 2011, held that the race and age discrimination claims were out of time, rejected the alleged continuing act, declined to extend time, and dismissed the claims for want of jurisdiction.