Sameena Bashir v The London Borough Of Barking & Dagenham & Ors

At the strike-out stage, an Employment Tribunal must not determine disputed factual issues without the analysis required to show that a complaint has no reasonable prospect of success. A complaint under the Agency Workers Regulations 2010 concerning equal treatment after the qualifying period must be addressed separately.

Potential principal liability under section 109 of the Equality Act 2010 depends on whether the alleged agent acted on the principal’s behalf and with its authority. The fact-sensitive question cannot be rejected merely because the alleged agent was employed by a contractor. A tribunal must also analyse whether a later act can arguably form part of conduct extending over a period before striking out time-barred discrimination complaints.

The claimant, a tutor supplied through an agency to work with a child with special educational needs, brought complaints under the Agency Workers Regulations 2010, the Equality Act 2010 and the Employment Rights Act 1996. The Employment Tribunal struck out or dismissed the complaints, principally on jurisdictional and time-limit grounds.

On appeal, the claimant challenged the treatment of the agency-worker complaint and the Equality Act complaints. The central issues were whether the fourth respondent could arguably have been the local authority’s agent, whether a March 2022 email could arguably form part of conduct extending over a period, and whether the complaints should have been struck out.

1. The appeal was allowed in part. The strike-out of the Equality Act and Agency Workers Regulations complaints was set aside and those matters were remitted. The dismissal of the protected-disclosure complaint under the Employment Rights Act 1996 remained in force because it was not challenged on appeal.

2. A time-limit issue may be determined substantively as a preliminary issue, or a complaint may be struck out because it has no reasonable prospect of being in time. Those are distinct exercises. The Employment Tribunal had been directed to consider strike-out under Rule 37 of the Employment Tribunal Rules 2013, but its reasons did not consistently identify which exercise it had undertaken.

3. The Tribunal erred by dismissing all complaints without separately addressing the claimant’s Regulation 5 complaint. The first respondent accepted that the alleged Agency Workers Regulations infringement was in time, since the last alleged infringement fell within the applicable period.

4. The Agency Workers Regulations did not determine whether the first respondent was vicariously liable for alleged harassment by the fourth respondent. That question arose under section 109 of the Equality Act 2010. Kemeh v Ministry of Defence showed that work performed for a third party’s benefit does not alone establish agency. However, the first respondent’s case was that the second respondent and its employees discharged the authority’s statutory care duty. The Tribunal therefore had to consider the parties’ relationships, the fourth respondent’s functions and the authority conferred to act on the first respondent’s behalf. It was an error to hold that agency was not reasonably arguable without that factual analysis.

5. The Tribunal also erred by deciding, without substantive analysis, that the fourth respondent’s email of 2 March 2022 could not arguably be conduct extending over a period under section 123(3). If the claim against the first respondent proved to be in time, that could be relevant to whether it was just and equitable to extend time for the claims against the remaining respondents.

6. The remitted case was to be managed and, if necessary, determined by a differently constituted Employment Tribunal. It would decide whether any strike-out applications or preliminary issues should proceed.

• Employment Appeal Tribunal — allowed the appeal in part, set aside the strike-out of the Equality Act and Agency Workers Regulations complaints, and remitted them to a differently constituted Employment Tribunal.
• Employment Tribunal — Employment Judge R S Drake, following a preliminary hearing on 4 July 2023, gave judgment dated 6 July 2023 striking out or dismissing the claimant’s complaints.