Robinson v Royal Surrey County Hospital NHS Foundation Trust

For a continuing act under section 123 of the Equality Act 2010, the complaint must be capable of linking the earlier conduct with the later act relied on to bring time in. A different decision-maker is relevant but not conclusive. The tribunal must assess the reasoning and factual context as a whole.

Acts falling under different discrimination headings may, depending on the facts, be considered together as conduct extending over a period. That question did not arise where the dismissal was a capability decision and was alleged to result from the consequences of earlier conduct, rather than to continue that conduct.

An Employment Tribunal need not invite an unrepresented claimant to amend a shifting and unparticularised claim. It may strike out a claim with no reasonable prospect of success where its implausibility justifies that conclusion.

The Claimant was dismissed on capability grounds on 25 March 2013 and presented an Employment Tribunal claim on 19 June 2013. She alleged unfair dismissal, disability discrimination and detriment for protected disclosures.

The Reading Employment Tribunal held that all disability-discrimination complaints except direct discrimination in the dismissal were out of time. It also struck out the protected-disclosure detriment claim for having no reasonable prospects of success. The remaining dismissal claims were later dismissed after a Full Merits Hearing by a differently constituted tribunal.

The Claimant appealed the time-limit and strike-out rulings. The Respondents cross-appealed on the basis that the protected-disclosure case considered at the preliminary hearing was not the pleaded case and required an amendment.

1. Appeal dismissed; cross-appeal allowed. The Employment Tribunal was entitled to find that the dismissal was not part of conduct extending over a period for section 123 of the Equality Act 2010.

2. The Tribunal did not treat the fact of a different decision-maker as conclusive. It permissibly considered that factor with the absence of evidence of a series of acts, the capability basis of the dismissal, and the difference between the earlier shift and adjustment complaints and the Claimant's later inability to work. The Claimant alleged that dismissal resulted from the consequences of earlier discrimination, not that it continued the same discriminatory conduct.

3. It was unnecessary to determine whether the pre-dismissal allegations should have been considered together despite falling under separate discrimination heads. The Judge observed that such aggregation might be appropriate in a fact-specific case where apparently different legal heads describe aspects of the same conduct. It could not assist here because there was no operative link to dismissal.

4. In any event, the later Full Merits Tribunal had determined that the dismissal was not direct disability discrimination. The Claimant was estopped from relying on dismissal as the final act of a discriminatory course of conduct. She had been able to rely on the earlier allegations as evidential background at that hearing.

5. The protected-disclosure case advanced orally before the preliminary Tribunal required a formal amendment. The Tribunal was not obliged to assume an amendment application or invite one. On the pleaded case, strike-out was conceded to be available. Alternatively, the Tribunal was entitled to find the orally advanced allegation so implausible that it had no reasonable prospect of success. The later finding that there was no plot to remove the Claimant provided an additional issue-estoppel answer, or made strike-out inevitable.

• Employment Appeal Tribunal: The Claimant's appeal from the Reading Employment Tribunal was dismissed and the Respondents' cross-appeal was allowed.
• Employment Tribunal (Reading): In the judgment appealed from, sent on 4 March 2014, the Tribunal held the pre-dismissal disability-discrimination claims out of time and struck out the protected-disclosure detriment claim.
• Employment Tribunal (Reading, Full Merits Hearing): The later tribunal dismissed the unfair-dismissal and direct disability-discrimination claims arising from dismissal.