N Ahmed v Capital Arches Group Limited

A discrete discriminatory decision does not become conduct extending over a period merely because it has continuing consequences. Under section 123(3)(a) of the Equality Act 2010, the tribunal must identify the conduct comprised in the live, pleaded complaints. Later events cannot extend time where they were not permitted as part of those complaints.

In deciding whether to make a just and equitable extension, a tribunal may give substantial weight to the age of the allegations and prejudice caused by unavailable former witnesses. A hearing on limitation is not unfair because a party does not call a witness whom it does not rely upon, particularly where the hearing does not determine the merits of the underlying discrimination claims.

The claimant presented claims of race and religion or belief discrimination in October 2022. Following case-management decisions, the only live complaints concerned alleged remarks by colleagues and the claimant’s manager’s decision to change his duties, all occurring by October 2018.

At a substantive preliminary hearing, Employment Judge Klimov held that the complaints were out of time and that it was not just and equitable to extend time. The claimant appealed, contending that the alleged treatment was continuing until 2021, that prejudice to the respondent had been wrongly assessed, and that the limitation hearing was unfair because his former manager did not attend for cross-examination.

The central issue was when time began to run under section 123(3) of the Equality Act 2010, having regard to the scope of the live claims.

1. Appeal dismissed. The Employment Tribunal correctly held that the live discrimination and harassment complaints concerned conduct ending in October 2018.

2. The alleged reassignment of duties was a discrete decision. It was not conduct extending over a period merely because it continued to affect the claimant. The distinction drawn in Barclays Bank v Kapur [1991] 2 AC 355, Sougrin v Haringey Health Authority [1992] ICR 650, and Parr v MSR Partners LLP [2022] EWCA Civ 24 applied. The claimant did not allege an ongoing policy allocating duties by race or religion. His case was instead that his manager made a particular decision about him, which had continuing consequences.

3. Nor did the live claims encompass later conduct up to 2021. The earlier case-management decision had expressly confined the permitted claims to the matters in 2018 and had excluded fresh post-2018 claims. The correct starting point was the case as pleaded and permissibly amended, as confirmed by Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185. Any challenge to the earlier restriction of the claims required an appeal against that decision.

4. The Tribunal was entitled to find serious prejudice in requiring the respondent to defend old allegations concerning conversations with former employees who were no longer employed. Its assessment of the lengthy delay, the claimant’s explanations, and prejudice disclosed no error.

5. The limitation hearing was fair. The respondent had not relied on the manager as a witness, had not relied on her earlier statement, and the Tribunal had not relied upon it. No order required her attendance. The hearing concerned time limits, not the merits of the underlying allegations, so no adverse inference arose from her absence.

• Employment Appeal Tribunal: Dismissed the claimant’s appeal in [2025] EAT 133.
• Employment Tribunal, London Central: At a public preliminary hearing on 15 September 2023, Employment Judge Klimov held that the remaining complaints were out of time and declined to make a just and equitable extension.