Dr Gueorgui Kolev v Middlesex University

An Employment Tribunal must distinguish between a strike-out application and substantive determination of a preliminary issue. A claim may be struck out for having no reasonable prospect of success only after the tribunal has identified the claim and applied the relevant strike-out test. A substantive limitation issue requires proper notice, identification of the issue and, where facts are disputed, appropriate preparation and evidence.

Discrimination claims are highly fact-sensitive. They should be struck out only in the clearest cases. The claimant’s case must ordinarily be taken at its highest, and a tribunal must not resolve disputed core facts through a summary process. The fact that different individuals were involved in alleged discriminatory acts is relevant, but not conclusive, when deciding whether conduct extended over a period under Equality Act 2010, section 123.

The claimant, a senior lecturer, presented claims including sex discrimination, harassment and victimisation. He alleged, among other matters, repeated failures of promotion, treatment during sickness absence, refusal of sabbatical leave, and disciplinary proceedings culminating in his dismissal.

At a preliminary hearing listed to consider strike-out and deposit-order applications, the Employment Tribunal held that claims based on treatment before 7 October 2019 were out of time. It found that the earlier matters were distinct acts, that there was no continuing act of discrimination, and that it was not just and equitable to extend time. It struck out those claims.

The claimant appealed on the grounds that the tribunal erred in its approach to conduct extending over a period and to the just-and-equitable discretion under section 123 of the Equality Act 2010.

1. Appeal allowed. The Employment Judge erred by determining substantive and potentially dispositive limitation issues at a hearing listed only to consider strike-out and deposit-order applications. The tribunal determined whether conduct extended over a period and whether time should be extended, rather than deciding whether the claims had no reasonable prospect of succeeding on those issues.

2. A strike-out application and a preliminary issue are procedurally distinct. A strike-out may proceed on the claimant’s case taken at its highest. Determination of a preliminary issue, however, can finally determine liability or jurisdiction and may require identified issues, directions, evidence and factual findings. Under the Employment Tribunal (Constitutional of Rules and Procedure) Regulations 2013, proper notice of a hearing involving a preliminary issue must specify that issue. The notice here did not do so, and late documents compounded the unfairness.

3. The tribunal failed adequately to identify the claimant’s pleaded case. It omitted material allegations concerning the asserted pattern of more favourable treatment of women, named comparators, the refusal of sabbatical leave, and the alleged link between that refusal and subsequent disciplinary proceedings. It therefore did not take the case at its highest.

4. The tribunal also treated the involvement of several individuals as effectively conclusive against a continuing act, although that factor was only relevant and not conclusive. It made no findings on disputed facts that might establish a link between the alleged acts. It did not analyse whether the claims had no reasonable prospect of success, whether a deposit order was appropriate, or whether it should exercise the discretion to strike out.

5. The limitation and strike-out decisions were set aside. The case was remitted to a differently constituted Employment Tribunal, which should first identify the claims and then give appropriate directions before considering strike-out and/or time-limit issues.

• Employment Appeal Tribunal: appeal allowed; the strike-out and limitation decision was set aside and the case remitted to a differently constituted tribunal.
• Employment Tribunal, Watford: on 26 April 2021, claims of sex discrimination, harassment and victimisation arising from treatment before 7 October 2019 were held out of time and struck out.