Greco v General Physics UK Ltd

An Employment Tribunal is ordinarily entitled, and bound, to determine discrimination claims by reference to properly pleaded and particularised allegations. The degree of assistance owed to an unrepresented party is fact-sensitive and constrained by impartiality and fairness to the opposing party.

For a continuing act, the complaint must concern an ongoing situation or state of affairs, rather than disconnected acts. A tribunal has a broad discretion to extend time where just and equitable. Evidence of pre-termination negotiations may be considered in an unfair-dismissal claim to determine whether the claimant's allegation of improper conduct engages the statutory exception.

The Claimant appealed against the Employment Tribunal's judgment of 7 July 2015 dismissing her claims for constructive unfair dismissal and sex discrimination.

She contended that the Tribunal had failed to determine further discrimination allegations, wrongly treated her pleaded allegations as separate acts, wrongly refused a just and equitable extension of time, inadequately addressed a 9 July meeting and section 111A of the Employment Rights Act 1996, and displayed apparent bias.

The central questions were whether the Tribunal had committed errors of law or procedural unfairness in its management and determination of those claims.

1. Appeal dismissed. None of the grounds disclosed an error of law, procedural irregularity or apparent bias.

2. The Tribunal was entitled to decide the sex-discrimination claim by reference to the seven allegations in the Claimant's further particulars. It had explained the issues and time points before evidence began. The Claimant neither applied to amend nor identified any further allegation for determination. Its duty to assist an unrepresented litigant did not require it to extract unpleaded allegations from other documents, particularly where that could be unfair to the Respondent and its witnesses.

3. The Tribunal correctly treated the pleaded matters as individual acts. Applying Commissioner of Police of the Metropolis v Hendricks, [2003] ICR 530, the proper inquiry was whether the complaint alleged an ongoing situation or state of affairs, rather than unconnected acts. The alleged incidents were markedly different in nature and timing. The common involvement of the line manager was relevant but not conclusive.

4. The Tribunal had correctly directed itself that it possessed a broad discretion under section 123 of the Equality Act 2010. Its composite reasons for refusing an extension applied to all allegations, which concerned events substantially outside the primary limitation period. It was not required to rehearse the obvious prejudice to the Claimant separately.

5. Assuming without deciding that the 9 July discussion included pre-termination negotiations, the Tribunal did not offend section 111A of the Employment Rights Act 1996. The Claimant relied on the meeting as improper conduct supporting constructive dismissal. The Tribunal was therefore required to decide that issue and permissibly found that the offer of agreed departure was not an ultimatum or otherwise improper. Section 111A did not apply to the sex-discrimination claim.

6. Having considered all relevant circumstances, the Tribunal's case-management decisions and minor errors could not lead a fair-minded and informed observer to conclude that there was a real possibility of bias.

• Employment Appeal Tribunal: dismissed the Claimant's appeal.
• Employment Tribunal (Nottingham): by a judgment dated 7 July 2015, dismissed claims of constructive unfair dismissal and sex discrimination.