Caterham School Ltd v Rose

A tribunal may use a prima facie case assessment as shorthand for the no-reasonable-prospect-of-success test when deciding whether an apparently out-of-time discrimination complaint should be struck out. A refusal to strike out does not finally determine that the complaint forms part of conduct extending over a period.

A definitive decision under section 123(3)(a) of the Equality Act 2010 requires evidence and findings of fact about the alleged discriminatory acts. It cannot be made solely from the pleaded case. A tribunal must also identify clearly whether a preliminary hearing determines an issue substantively or only addresses strike-out.

The Claimant resigned in August 2017 and presented claims for constructive unfair dismissal, direct sex and age discrimination, holiday pay and harassment. At a preliminary hearing, the Employment Tribunal held that the direct discrimination claims could proceed because the alleged conduct in 2017 extended over a period ending with resignation, and it extended time on a just and equitable basis.

The Respondent appealed that time decision. The Claimant sought permission to bring a late cross-appeal, contending that her claim form included an undetermined harassment complaint concerning remarks allegedly made on 17 January 2017. The central issues were whether that harassment complaint existed and remained live, and whether the Tribunal could conclusively determine a continuing-act issue without evidence or findings of fact.

1. Appeal and cross-appeal allowed. Permission was granted for the late cross-appeal. Under Rule 37 of the EAT's 1993 Rules of Procedure, permission was a matter of balancing prejudice. Although the Claimant's legal team should have raised the point earlier, the Respondent had been able to meet it fully and faced minimal additional burden. Refusing permission would deprive the Claimant of a valid challenge to an overlooked claim.

2. On the proper construction of the claim form, the allegation concerning 17 January 2017 pleaded harassment in the alternative to direct discrimination. Its language tracked section 26 of the Equality Act 2010. It had not been withdrawn, and the Tribunal had not actually determined it because it had erroneously assumed that the only harassment claim concerned 2011. The claim form did not, however, plead further 2017 harassment claims: the wording concerning the remaining conduct tracked section 13 and alleged direct discrimination.

3. The Tribunal had made a definitive, rather than provisional, finding that all alleged 2017 conduct formed conduct extending over a period for section 123(3)(a) of the Equality Act 2010. Its conclusions on the running of time and the just and equitable extension necessarily proceeded on that finding.

4. That definitive finding was an error of law. The Tribunal had received no evidence and made no findings as to what occurred or whether any alleged episode was discriminatory. A substantive, factually disputed continuing-conduct issue requires evidence, findings and application of law to those findings. A prima facie assessment is appropriate only when considering strike-out: if a complaint is not struck out, the time issue remains for the full hearing and is not decided in the Claimant's favour.

5. The Full Merits Hearing Tribunal must determine the alleged 2017 conduct, whether it amounted to direct discrimination or, for 17 January, harassment, whether any unlawful acts formed conduct extending over a period, the applicable time limits, and any just and equitable extension.

• Employment Appeal Tribunal: Allowed the Respondent's appeal and the Claimant's late cross-appeal. The relevant time and merits issues remain for the Full Merits Hearing.
• Employment Tribunal: At a preliminary hearing on 8 May 2018, held the direct sex and age discrimination claims out of time but allowed them to proceed on a just and equitable extension; it dismissed the unfair dismissal, holiday pay and harassment claims as out of time.