Razak v IHS Global Ltd

An Employment Tribunal may determine whether earlier discrimination allegations form part of conduct extending to a later dismissal by reference to the case which the claimant has pleaded and clarified. It need not hear all substantive evidence where the pleaded case provides no arguable basis for the alleged overarching state of affairs. Earlier acts which merely have consequences feeding into a dismissal do not, without more, make the dismissal part of the same continuing conduct.

The question whether to extend time under Equality Act 2010, section 123 is a discretionary assessment. It may properly be determined as a case-management issue before the merits hearing where relevant evidence has been received. Delay, the claimant's explanation, prejudice and the likely reduced cogency of evidence are relevant considerations.

The claimant brought Employment Tribunal proceedings alleging unfair dismissal and claims under the Equality Act 2010. Her employment ended on 25 March 2013. The discrimination allegations numbered 1 to 31 concerned acts by her line manager, the last of which was said to have occurred on 11 February 2013. The claimant also alleged that her dismissal formed part of a continuing course of discriminatory conduct.

The Employment Tribunal held that the earlier allegations were out of time, were not part of conduct extending to the dismissal, and should not be admitted by a just and equitable extension of time. It left the dismissal-related claims to proceed. The claimant appealed, contending that the Tribunal should have heard all the evidence before deciding both issues.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the dismissal was not part of a continuing course of conduct with the earlier allegations.

2. An Employment Tribunal should be slow to resolve disputed matters in discrimination litigation without relevant evidence. However, it was entitled to require the legally represented claimant to formulate an arguable case showing how the earlier allegations linked to the dismissal. The pleadings and revised list of issues did not allege a generally discriminatory atmosphere or an overarching state of affairs. The cross-references and assertion that managers were seeking to engineer dismissal were too slight to make continuous conduct up to dismissal arguable.

3. The Tribunal was entitled to treat the pleaded case, at its highest, as conduct ending on 11 February 2013 followed by consequences which fed into the dismissal. Consequences of an earlier act do not by themselves make a later dismissal part of that conduct for section 123 purposes.

4. The Tribunal was also entitled to decide the just and equitable issue before the substantive merits hearing. It heard evidence about the claimant's health and delay, made unchallenged factual findings, and considered the length of delay, prejudice, and the serious risk that late clarification and newly identified individuals would reduce the cogency of evidence. Different conclusions could legitimately be reached on the same facts, but its conclusion disclosed no error of law.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal's time-limit decision was upheld.
• Employment Tribunal, London (Central): reasons sent on 28 March 2014. The Tribunal held that discrimination allegations other than those arising from dismissal were out of time and declined a just and equitable extension.