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

The Employment Appeal Tribunal allowed the appellant's challenge to an Employment Tribunal decision which had struck out complaints under the Equality Act 2010 and the Agency Workers Regulations 2010. The EAT concluded the Employment Tribunal erred in law by treating time and jurisdictional matters as properly disposed of on strike out without adequate legal or factual analysis, notably in relation to (i) whether the end user could be liable for acts of a contractor's employee as agent under section 109 Equality Act 2010 and (ii) whether an act on 2 March 2022 could form part of conduct extending over a period for aggregation under section 123(3) Equality Act 2010. The EAT also clarified that the agency worker claim under Regulation 5 AWR should not have been dismissed as struck out where the last alleged infringement fell within the relevant three month period. The Employment Tribunal's strike out of the Equality Act and AWR complaints was set aside and the matters remitted for further case management.

Background and parties. The appellant was engaged as a tutor supplied by an agency (Remedy Recruitment) and paid via a payroll company. The London Borough of Barking & Dagenham was the hiring organisation; Three Angel Health Care Ltd provided carers for the same child and two individuals (third and fourth respondents) worked for Three Angel. The appellant brought claims under the Agency Workers Regulations 2010 (AWR), the Equality Act 2010 (EQA) (including allegations of race discrimination, sexual harassment and victimisation) and claims arising under the Employment Rights Act 1996 (ERA) relating to protected disclosures and automatic unfair dismissal.

Procedural history. A preliminary hearing was fixed (directions given by Employment Judge J S Burns) to consider strike out and time/jurisdiction issues. Employment Judge R S Drake after a preliminary hearing dismissed or struck out the complaints as out of time or as having no reasonable prospect of success. The appellant appealed to the Employment Appeal Tribunal.

Nature of relief sought. The appellant sought to pursue complaints for AWR entitlements (Regulation 5), discrimination, harassment and victimisation under the Equality Act 2010 (including alleged acts by the fourth respondent) and remedies for detriments arising from protected disclosures under the ERA.

Issues framed by the court on appeal. Whether the Employment Tribunal erred in law in striking out complaints under Rule 37 (no reasonable prospect of success) and in its treatment of time limits; whether it mischaracterised the ERA claim; whether it correctly analysed potential principal/agent liability under section 109 EQA and vicarious liability principles; and whether an alleged email of 2 March 2022 could be aggregated with earlier conduct as conduct extending over a period under section 123(3) EQA.

Reasoning and conclusions. The EAT found multiple legal errors. The ERA claim had been mischaracterised in places but that mischaracterisation did not alter the substantive time point for that claim; the appellant did not challenge dismissal of the ERA claim for delay on appeal, so that dismissal stands. By contrast, the Employment Tribunal erred in striking out the EQA and AWR complaints. The ET's analysis of principal/agent liability relied on authorities about agency but did not analyse whether the fourth respondent acted with authority or on behalf of the hiring organisation; the ET therefore prematurely concluded the end user could not arguably be liable. The ET also failed to analyse whether the 2 March 2022 act could form part of a course of conduct for aggregation under section 123(3) EQA. The AWR claim was not out of time as the last payment fell within the three month period provided by the Regulations. For these reasons the EAT set aside the strike out of the Equality Act and AWR complaints and remitted the matters to the Employment Tribunal for further case management and any appropriate preliminary determinations, preferably by a different Employment Tribunal judge.

Appeal allowed. The Employment Appeal Tribunal held that the Employment Tribunal erred in law by striking out the Equality Act 2010 and Agency Workers Regulations 2010 complaints without adequate legal and factual analysis of (i) potential principal/agent liability under section 109 Equality Act 2010 and (ii) whether the act of 2 March 2022 could be aggregated as conduct extending over a period under section 123(3) Equality Act 2010. The ET's strike out of those complaints was set aside and the matters remitted for further case management. The Employment Rights Act 1996 claim remained dismissed for delay, a point not challenged on appeal.

Appeal from an Employment Tribunal decision of Employment Judge R S Drake dated 6 July 2023 following a Preliminary Hearing on 4 July 2023. Preliminary directions for the strike out/time issues had been given by Employment Judge J S Burns following a preliminary hearing on 6 February 2023. The appeal was determined by the Employment Appeal Tribunal on 26 September 2024 (neutral citation [2024] EAT 154).