K Mesuria v Eurofins Forensic Services Ltd

An Employment Tribunal must distinguish between determining a limitation issue substantively and striking out a complaint because it has no reasonable prospect of being in time. A substantive determination ordinarily requires appropriate evidence and findings of fact. The prima facie case formulation is shorthand for the strike-out test, not a lower threshold for conclusively deciding whether conduct extended over a period.

Before listing a preliminary hearing on time limits, the tribunal must define its purpose and issues, give suitable directions, and ensure procedural fairness. It must not decide un-notified merits issues. Under section 123 of the Equality Act 2010, the just and equitable discretion is broad and requires the necessary factual findings and a balancing of prejudice.

The claimant, a disabled senior document examiner, brought two Employment Tribunal claims alleging disability discrimination, victimisation, holiday pay and unauthorised deductions. The claims concerned, among other matters, the respondent’s group income-protection policy and payments during her long sickness absence.

A case-management hearing directed a preliminary hearing concerning limitation, including whether claims had reasonable prospects of being in time. The notice of hearing described a partly different exercise. At the preliminary hearing, the Employment Judge dismissed the first claim as out of time and, by a certificate of correction, struck out the second claim. The Judge also decided merits issues which had not been listed for determination.

The claimant appealed both decisions. The central issue was whether the preliminary hearing had been conducted fairly and according to the correct distinction between substantive limitation determinations and strike-out decisions.

1. Appeals allowed. The Employment Judge’s time judgment and certificate of correction were set aside because the preliminary hearing was substantively unfair. The claimant, a litigant in person represented by her sister, was not told whether limitation was to be determined substantively, considered for strike out, or both. Nor was she given notice that the merits of complaints would be determined.
2. A tribunal must distinguish a substantive preliminary issue from a strike-out application. Definitively deciding whether a complaint is in time, including whether there was conduct extending over a period, requires suitable preparation, evidence where facts are disputed, findings of fact and application of the law. By contrast, the prima facie case test is shorthand for the no-reasonable-prospects test under rule 37 of the Employment Tribunal Rules 2013.
3. The case-management order and hearing notice did not clearly identify the exercise to be undertaken. The hearing was fixed to consider strike out only on limitation grounds, but the Employment Judge struck out victimisation, working-time and wages complaints on their merits. That exceeded the notified scope and deprived the claimant of a fair opportunity to address those issues.
4. The limitation reasoning was also defective. The Judge did not make the factual findings or balancing exercise required to decide whether it was just and equitable to extend time under section 123 of the Equality Act 2010. There is no requirement for a claimant to show a cogent reason before that broad discretion may be exercised.
5. In considering conduct extending over a period, the Judge considered individual allegations in isolation and failed to consider whether they formed part of continuing conduct with other complaints. The treatment of ongoing alleged failures to make payments was also difficult to reconcile with Barclays Bank Plc v Kapur and Others [1991] 2 A.C. 355.
6. The claims were remitted to a differently constituted Employment Tribunal. Any further strike-out or deposit application should be considered carefully, including whether a preliminary hearing would produce a real saving in expense.

• Employment Appeal Tribunal: appeals allowed. The Employment Tribunal’s judgment of 3 March 2023 and certificate of correction were set aside and the claims remitted to a differently constituted tribunal.
• Employment Tribunal: at a preliminary hearing, the tribunal dismissed the first claim as out of time and, by certificate of correction, struck out the second claim.