Whitburn v Royal Devon & Exeter NHS Foundation Trust

An Employment Tribunal must keep separate the question whether a discrimination claim is in time and the distinct question whether it has no reasonable prospect of success. A potentially time-barred claim may have merit, and a timely claim may be hopeless.

A pre-1 October 2010 allegation framed only as discrimination arising from disability cannot proceed because that cause of action did not then exist. However, an allegation framed as indirect discrimination or harassment may remain viable where an equivalent claim existed under the earlier statutory regime and it is arguable that the conduct formed part of a continuing discriminatory practice.

A deposit order under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 requires a separate assessment that the particular claim has little reasonable prospect of success. Alternative pleadings do not themselves justify a deposit order.

The claimant, a disabled former employee, brought wide-ranging disability-discrimination claims, later formulated in a Scott Schedule. At a preliminary hearing, the Employment Tribunal struck out three 2007 allegations as out of time and made deposit orders concerning other allegations.

The appeal concerned allegations 4, 5 and 6, which alleged discrimination arising from disability, indirect discrimination and harassment connected with work patterns, absence management and a manager’s remarks. It also concerned deposit orders imposed on the direct-discrimination aspects of allegations 19, 21, 26 and 31.

The central issues were whether the Tribunal had conflated limitation with strike-out, whether the pre-2010 allegations stated viable causes of action, and whether it had correctly applied the deposit-order threshold.

1. Appeal allowed in part. The Employment Judge did not adequately distinguish the limitation issue from the separate question whether an allegation had no reasonable prospect of success. Those exercises are conceptually different and should have been addressed separately.

2. Allegation 4 remained struck out. It was pleaded only as discrimination arising from disability. That cause of action was not viable for conduct before 1 October 2010 because no equivalent cause of action existed under the Disability Discrimination Act 1995.

3. Allegation 5 was restored only as an indirect-discrimination claim. It was not hopeless: indirect discrimination arguably had an earlier statutory equivalent, and the claimant might establish that the 2007 weekday-working requirement formed part of conduct extending over a period under section 123(3)(a) of the Equality Act 2010. Its discrimination-arising-from-disability component remained struck out.

4. Allegation 6 was restored. Harassment, unlike discrimination arising from disability, was potentially available for pre-2010 conduct. Although it might be difficult to show that an isolated remark formed part of continuing conduct, it was not necessarily impossible where the alleged remark arose during discussion of adjustments and flexible working.

5. The appeal against the deposit orders for allegations 19, 21, 26 and 31 was dismissed. Alternative direct- and indirect-discrimination pleadings did not, without more, show that the viable alternative had little prospect of success. However, the Employment Judge had separately applied the correct Rule 39(1) threshold to the direct-discrimination claims. No error of principle was shown.

• Employment Appeal Tribunal: Appeal allowed in part: allegation 5 was restored only as indirect discrimination, allegation 6 was restored, and the challenges concerning allegation 4 and the four deposit orders were dismissed ([2015] UKEAT 0188_15_3010).

• Employment Tribunal, Exeter: Employment Judge Roper struck out allegations 4, 5 and 6 as out of time and made deposit orders in respect of 17 allegations, including the direct-discrimination aspects of allegations 19, 21, 26 and 31.