Kalu & Anor v Brighton & Sussex University Hospitals NHS Trust

A tribunal may make a deposit order where a claim has little reasonable prospect of success because it is out of time. Whether earlier and later events amount to conduct extending over a period under section 123(3) of the Equality Act 2010 is a fact-sensitive evaluative question. A connection between two processes does not itself make them one continuing course of conduct.

A tribunal may treat a grievance investigation and a later disciplinary procedure as logically distinct. An appellate court will not interfere with that assessment where it was properly open to the tribunal. A defect in a separate merits assessment need not vary a deposit order that is independently justified by the time-limit conclusion.

The appellants, consultants employed by the respondent NHS Trust, presented claims including race discrimination, victimisation and protected-disclosure detriment allegations concerning an investigation and report by Ms Hill QC in July and August 2015. Their claims were presented on 29 September 2017 and also concerned later events, including their dismissals.

The Employment Tribunal made deposit orders under Rule 39 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 in respect of the allegations concerning the investigation. It held that those allegations had little reasonable prospect of being in time and little reasonable prospect of succeeding on their merits. It refused the respondent's strike-out applications.

The appellants contended that the investigation formed part of conduct extending over a period which continued through the disciplinary process to their dismissals, and challenged the merits assessment.

1. Appeal dismissed. The Employment Tribunal was entitled to make the deposit orders. Its conclusion that the time-limit issue gave the relevant allegations little reasonable prospect of success was sufficient to sustain the orders.

2. The question under section 123(3) of the Equality Act 2010 was whether it was open to the Tribunal to regard the grievance investigation and the later disciplinary action as logically distinct, rather than as one act or conduct extending over a period. That was an evaluative question for the Tribunal.

   The two processes were connected, but the investigation was conducted under the Dignity at Work policy and addressed matters logically distinct from the later application of the MHPS procedure. The Tribunal's assessment that they did not collectively comprise conduct extending over a period was properly open to it. The observation that Ms Hill QC was a third party added little, since she had been engaged by the Trust, but it did not undermine the Tribunal's reasoning read as a whole.

3. Hale v Brighton & Sussex University Hospital NHS Trust did not establish a general principle that every step following an employer's instigation of a process forms part of continuing conduct. Its application depended on the substance of the complaint and the process in issue.

4. The Tribunal had erred in treating the victimisation allegation in paragraph 23(3) of the ET1 as having little reasonable prospect of success. It had not addressed that argument and it did not fall within that category. However, no variation of the order was required because the time-limit conclusion independently covered all relevant paragraphs.

5. For the remaining pleaded allegations, the Tribunal was entitled to assess the earlier tribunal findings concerning the report, together with the report itself, as supporting a conclusion of little reasonable prospect of success. Permission to appeal to the Court of Appeal was refused.

• Employment Appeal Tribunal: dismissed the appeal against the deposit orders and refused permission to appeal further: [2019] UKEAT 0095_19_1207.
• Employment Tribunal: following a hearing on 23 February 2018, made deposit orders under Rule 39 and refused the respondent's strike-out applications under Rule 37. The order and reasons were sent on 7 June 2018.