Sridhar v Kingston Hospital NHS Foundation Trust

Where a discrimination claim relies on apparently separate incidents as a continuing discriminatory state of affairs, an Employment Tribunal should not strike it out on limitation grounds unless the claimant has no prima facie or reasonably arguable basis for saying that the incidents are linked and amount to conduct extending over a period under Equality Act 2010, section 123(3)(a).

The continuing-state-of-affairs question is distinct from the statutory rule fixing the date of a particular omission. It will commonly require determination with the merits after all the evidence has been heard. An agreed list of issues will ordinarily define the issues for trial, but may be amended in the interests of justice; a party seeking to add an unpleaded claim should apply to amend.

The appellant, an associate specialist surgeon of Indian origin, brought claims of race discrimination and harassment concerning treatment said to have occurred from 2007 onwards. The Employment Tribunal struck out several allegations as out of time at a preliminary hearing. It also ruled that a victimisation claim was not before the Tribunal because it had not been pleaded or included in an agreed list of issues, and rejected a later reconsideration application as late.

On appeal, the principal issue was whether the struck-out allegations were arguably linked as a continuing discriminatory state of affairs for the purposes of section 123(3)(a) of the Equality Act 2010. The appellant also challenged the victimisation ruling and the treatment of his reconsideration application.

1. Appeal allowed in part. The Tribunal erred in striking out the specified discrimination and harassment allegations as out of time. It did not address or apply the Hendricks inquiry, although the pleaded case and the appellant's statement advanced an arguable case that the allegations formed a continuing discriminatory state of affairs.

2. At a preliminary stage, the question was not whether the appellant had proved continuing discrimination. It was whether he had established a prima facie or reasonably arguable basis for contending that the incidents were linked and capable of amounting to conduct extending over a period. The pleaded allegations disclosed a potentially constant theme of less favourable treatment and undervaluing of an associate specialist of Indian origin. They could not properly be struck out without evidence.

3. Section 123(4)(b) of the Equality Act 2010 determines when time runs for a particular omission. It does not prevent otherwise time-barred individual allegations from being in time if they are proved to form part of a continuing discriminatory state of affairs under section 123(3)(a). The Full Merits Tribunal must decide that issue, and the claimant bears the burden of proof.

4. The victimisation ground was dismissed. Victimisation was neither pleaded in the claim form nor included in the list of issues agreed through counsel. The Employment Judge was entitled to require an application to amend, rather than treat the claim as already before the Tribunal.

5. The reconsideration ground was also dismissed. Although receipt of the order by the appellant's former representative could potentially justify an extension of time, the purported reconsideration grounds alleged errors of law and had been resolved on appeal. Remittal for reconsideration would serve no purpose.

• Employment Appeal Tribunal: Allowed the appeal against the strike-out of the time-barred allegations and substituted a conclusion that they should proceed to the Full Merits Hearing. Dismissed the appeals concerning victimisation and reconsideration.
• Employment Tribunal, London (South): At a preliminary hearing, struck out specified race discrimination and harassment allegations as out of time, ruled that victimisation was not an issue for the final hearing without amendment, and later rejected reconsideration as out of time.