Fairlead Maritime Ltd v Parsoya

For section 123 of the Equality Act 2010, an employer's continuing application of a discriminatory pay policy may be conduct extending over a period. It is distinct from the continuing consequences of a completed discriminatory decision. Where the employer continues to withhold pay needed to remedy a shortfall caused by the policy, that may remain part of the discriminatory state of affairs.

In deciding whether to extend time on a just and equitable basis, an Employment Tribunal has a broad discretion. The Keeble considerations are guidance, not statutory conditions. The Tribunal may consider attempts at amicable resolution, continuing assurances by the employer, concern about bringing proceedings during employment, and the absence of demonstrated evidential prejudice.

The Claimant, an Indian national employed as a naval architect, was paid below the advertised salary while the employer considered his visa status to create employability issues. The Employment Tribunal held that this was unjustified indirect race discrimination. It found that, after the Claimant obtained a longer-term visa and his rate of pay was increased, the employer failed to make good the earlier pay shortfall despite an earlier commitment to do so.

The Claimant presented his claim after his employment ended. The East London Employment Tribunal held that the indirect discrimination claim was in time because the discriminatory state of affairs continued until termination. Alternatively, it held that an extension of time would be just and equitable. The employer appealed only those time findings.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claim concerned conduct extending over a period for the purposes of section 123(3) of the Equality Act 2010.

2. The relevant act was the application to the Claimant of the employer's indirectly discriminatory policy of withholding full salary because of perceived visa-related employability concerns. A continuing discriminatory policy is different from the continuing consequences of a past act. The policy remained operative where, after the visa issue was resolved and the ongoing salary was corrected, the employer continued to withhold the sum required to remedy the earlier discriminatory shortfall.

3. The Employment Tribunal's reasons were not straightforward and required clarification under the Burns/Barke procedure. Read with that clarification, however, they found that the employer had refined its policy by committing to make good the shortfall when the Claimant's employability status was resolved, but continued to refuse to do so because of the earlier visa-related criterion. That was a continuing discriminatory state of affairs, not merely a financial consequence of a completed decision. It continued until the employment ended, so the claim was presented in time.

4. In any event, the alternative extension of time was a permissible exercise of the Employment Tribunal's just and equitable discretion. The Tribunal could take account of the employer's continuing assurances, the Claimant's reasonable efforts to resolve matters without litigation, and his concerns about taking proceedings or seeking advice while still employed. The applicable question was not reasonable practicability.

5. The absence of an express finding on prejudice to the employer was not fatal. The employer had not raised a positive prejudice case below, identified no prejudice beyond liability, and the Tribunal had already heard the merits and could assess the cogency of the evidence.

• Employment Appeal Tribunal: dismissed the employer's appeal and upheld the Employment Tribunal's finding that the indirect discrimination claim was in time; alternatively, upheld the just and equitable extension of time.
• East London Employment Tribunal: upheld the Claimant's indirect race discrimination and breach of contract claims. It held that the discriminatory state of affairs continued until the employment ended, alternatively that time should be extended.