Haziz Rahim v The Big Word & Anor

An Employment Tribunal must identify the factual substance of pleaded claims before deciding limitation. A discrimination claim is not defined merely by its legal label. The tribunal must identify the alleged acts and the asserted discriminatory reason so that it can determine when the cause of action arose.

Where a written amendment application may alter the pleaded acts, including acts relevant to time limits, it must be decided before the tribunal fixes the parameters of the case or disposes of it on limitation grounds. The amendment decision remains for the tribunal under the Selkent principles. A perversity appeal fails where there was evidence on which the tribunal could reach its finding.

The claimant, a language interpreter, brought claims for disability and religion or belief discrimination, protected-disclosure detriment and dismissal, and contractual payments. His ET1 included a lengthy and unclear attachment. At a preliminary hearing, the Employment Tribunal was directed to identify the claims, determine whether they were in time, and identify the correct respondent.

Employment Judge Barrowclough held that the second respondent was the correct respondent and that all claims were out of time. The claimant appealed. He contended, among other matters, that the Tribunal had not identified the factual claims and had failed to consider a written application, sent before the hearing, to amend or relabel claims by reference to post-termination events.

The central issue was whether the Tribunal could determine limitation without first deciding that amendment application and identifying the claims’ factual basis.

1. Appeal allowed in part and remitted. Grounds 1 and 2 succeeded. The Employment Judge had identified headings of claims but had not identified their factual substance. A claim of discrimination requires alleged facts and an asserted discriminatory reason, to which the statutory framework is applied. That exercise is especially necessary where limitation is in issue, because the tribunal must identify the factual circumstances said to start time running.

2. The claimant had made a written amendment application before the hearing. It referred to continuing acts and to emails already contained in the ET1 attachment. The application could potentially have been treated either as further particulars of an existing claim or as a more substantial amendment which relied on matters previously advanced as contractual breaches as discriminatory acts. It was therefore necessary to decide the application before defining the claims and deciding whether they were in time.

3. The EAT did not determine whether the amendment should be permitted. That was a discretionary decision for the Employment Tribunal under the Selkent guidelines, including consideration of whether the amendment was significant or amounted to relabelling. The EAT also declined to determine the grounds concerning the limitation analysis and the just and equitable extension of time, since doing so could improperly influence the fresh tribunal decision following resolution of the amendment application.

4. Ground 5, challenging the identification of the second respondent, was dismissed. It was a perversity challenge. There was oral and documentary evidence, including the signed contractual document, on which the Employment Judge was entitled to find that the second respondent was the contractual counterparty and the appropriate respondent.

5. The claims for holiday pay and other contractual payments were correctly held to be out of time and could not proceed. The remaining matter was remitted to the same Employment Tribunal for rehearing, unless that proved impracticable or impossible.

• Employment Appeal Tribunal: Appeal allowed in part and remitted: [2023] EAT 171.
• Employment Tribunal, East London: Employment Judge Barrowclough held the second respondent was the correct respondent and held the claims out of time. That decision was set aside to the extent required by the successful grounds concerning claim identification and amendment; the respondent-identity finding and the dismissal of the contractual-payment claims remained undisturbed.