Mirek v Graysons Automotive Services

At a preliminary hearing without evidence on the alleged continuing act, an Employment Tribunal must ask whether the claimant’s case, taken at its highest, is reasonably arguable as an act extending over a period. It must not resolve disputed primary facts or make credibility findings on another issue to reject that contention.

The inquiry concerns the substance and linkage of the allegations. The question is whether they may evidence an ongoing discriminatory state of affairs, rather than isolated acts. Common personnel are relevant but not conclusive. Reasons must address the asserted link and explain why it is rejected.

The claimant, a Polish national employed by the respondent, alleged race discrimination arising from workplace conduct in 2015 and the respondent’s subsequent handling of his grievance. His grievance complained, among other matters, of alleged racial abuse at a meeting on 3 June 2015. A grievance meeting took place on 11 March 2016 and an outcome letter was issued on 23 May 2016.

The Employment Tribunal held that the earlier workplace complaints and the 11 March 2016 grievance complaint were out of time. It treated them as separate one-off acts and declined to extend time. Complaints concerning the May 2016 outcome and a later grievance appeal were allowed to proceed.

The appeal concerned whether the earlier allegations were capable of forming part of a continuing discriminatory state of affairs with the grievance allegations.

1. Appeal allowed. The Employment Tribunal erred in striking out the earlier race-discrimination allegations as out of time. The case was to proceed to a Full Hearing on the basis that complaints 1 to 3 were capable of being linked to complaints 4 to 6. If practicable, it should be heard by a different Employment Judge.

2. Under section 123 of the Equality Act 2010, the question was whether the substance of the allegations could show conduct extending over a period. The relevant contrast was between linked incidents evidencing a continuing discriminatory state of affairs and unconnected, isolated acts. Continuity of personnel was relevant but not determinative.

3. Because the issue was determined at a preliminary hearing without evidence on continuing conduct, the Tribunal had to take the ET1 at its highest, unless directly contradicted by undisputed contemporaneous material or other uncontradicted evidence. The proper question was whether there was a reasonably arguable basis for treating the allegations as linked. The Tribunal instead used language of primary findings, finding that conduct ended on 3 June 2015 and that the March 2016 allegation was a one-off act.

4. The reasons did not meet the Meek standard. A finding that one individual’s conduct ended in June 2015 did not address the claimant’s case against the respondent as a whole: workplace discriminatory conduct was allegedly followed by a failure to recognise or address it through the grievance process. The Tribunal gave no adequate explanation for rejecting that asserted link.

5. The conclusion was also unsupported on the available material. The same manager was alleged to have been involved in the June 2015 meeting, the March 2016 grievance meeting and the grievance outcome. The grievance itself concerned the earlier alleged racial abuse. On the pleaded case, the claimant had established an arguable continuing state of affairs. That did not determine the merits or establish a continuing act conclusively; both remained for the Full Hearing.

• Employment Appeal Tribunal: appeal allowed against the preliminary judgment of Employment Judge Dean. The earlier allegations were capable of forming part of a continuing act and were remitted to proceed with the remaining claims.
• Employment Tribunal: held that allegations arising on or before 20 May 2016 were out of time unless time were extended, rejected an extension, and allowed only the later grievance-related allegations to proceed.