Fairchild v WM Morrison Supermarkets Plc

An Employment Tribunal may determine limitation by reference to the last discriminatory act which a claimant identifies and relies upon at the hearing. This remains so where a later incident appears in the ET1 but the Tribunal has carefully established, with appropriate assistance, that it is not pursued as part of the discrimination complaint.

Whether to investigate a pleaded matter not pursued by a litigant is a matter of tribunal judgment. An appellate court will not interfere absent procedural unfairness or an error of law in the findings on reasonable practicability or a just and equitable extension of time.

The claimant, a former checkout operator, presented claims for unfair dismissal and race discrimination on 7 September 2012. At a pre-hearing review, the Employment Judge treated 26 April 2012 as the final discriminatory act relied upon in evidence. He held the claims time-barred and also stated that they would otherwise have been struck out.

The claimant appealed. She contended that the failure to respond to a job application made on 9 June 2012 was a pleaded act of victimisation and part of a continuing course of discrimination. Following a Burns/Barke inquiry, the Employment Judge confirmed that the claimant had not relied on that application as a discriminatory act. The central issue was whether the Judge was entitled to decide limitation on that basis.

1. Appeal dismissed. The Employment Judge was entitled to find that the claimant relied in evidence on her letter of 26 April 2012 as the final act of discrimination. The Judge had carefully clarified that position with the assistance of an interpreter. The later job application had been discussed but was not relied upon as part of a discriminatory act.
2. Applying the approach in Mensah v East Herts NHS Trust [1998] IRLR 531, a Tribunal should assist a litigant in formulating and presenting a claim, but it retains judgment as to whether to investigate a particular pleaded complaint. The Judge did not enter the arena or act unfairly by accepting the claimant's stated position.
3. Even if the respondent's letter of 11 May 2012 were included, the claims remained outside the primary limitation period. There was no error of law in the conclusions that it had been reasonably practicable to present the unfair-dismissal claim in time and that no just and equitable extension should be granted for the discrimination claim.
4. The Tribunal accepted that post-termination victimisation claims are justiciable under the Equality Act 2010. That point did not assist the claimant because the relevant June application was not pursued as a discriminatory act below. It was therefore unnecessary to address the alternative strike-out ground under rule 18(7)(b) of the 2004 Rules.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Judge's conclusion that the claims were out of time.
• Employment Tribunal, Bristol: Following a pre-hearing review on 16 November 2012, the Employment Judge dismissed the claims by reasons promulgated on 17 December 2012. A review application was rejected on 2 January 2013.
• Employment Appeal Tribunal: The earlier appeal hearing was adjourned for further reasons from the Employment Judge under the Burns/Barke procedure.