Washington Waithaka v Barclays Execution Services Limited

A tribunal should not strike out a discrimination claim as having no reasonable prospect merely because the alleged acts involved different people or lacked overtly discriminatory features. It must assess the claimant’s realistic best case and take care where the reason for treatment may require evidence. Whether conduct extends over a period is a general factual question: the issue is an alleged continuing situation attributable to the respondent, rather than isolated, unconnected acts; policies and practices are examples, not prerequisites.

Delay in delivering reasons is not, by itself, a ground of appeal. It must create a real risk that the party was deprived of a fair trial. In its obiter discussion of time extensions, the EAT said that a speculative assessment of the claim’s merits should ordinarily carry no weight, while the effect of delay on the respondent’s ability to defend remains relevant.

Mr Waithaka brought claims against his former employer, Barclays, for race discrimination, victimisation and harassment. At a preliminary hearing, the Employment Tribunal (Watford) concluded that some complaints were out of time because the argument that they formed part of conduct extending over a period had no reasonable prospect of success. It also refused to extend time on just and equitable grounds.

The Tribunal gave its decisions and reasons after substantial delay. Mr Waithaka appealed the strike-out, the refusal to extend time and the delay, relying on Article 6. The central issues were whether the continuing-conduct argument could properly be struck out and whether the delay or the Tribunal’s time-extension reasoning disclosed an appealable error.

1. Delay and Article 6. The Article 6 ground was dismissed. Unreasonable delay alone does not create an independent ground of appeal. A delay-based procedural challenge requires a serious procedural error or material irregularity giving rise to a real risk that the party was deprived of the substance of a fair trial. The approach in Bangs v Connex South Eastern Limited [2005] ICR 763 was applied. The delay was significant and regrettable, but its possible effect on the findings or reasons could be considered under the other grounds of appeal.
2. Conduct extending over a period. The governing inquiry is a general factual evaluation: whether the respondent is alleged to have been responsible for an ongoing situation or continuing state of affairs, rather than a succession of unconnected or isolated acts. Policies, rules, practices, schemes and regimes are examples, not an exhaustive list. The EAT relied on Commissioner of Police of the Metropolis v Henricks [2003] ICR 530.
3. The Tribunal was right to assess the strike-out application on the claimant’s realistic best case, but it wrongly treated the absence of an inherently discriminatory act or an allegation of racial motivation as counting against him. Neither is necessary to a viable race discrimination claim. The differences between the people involved and the varied nature and timing of the complaints were not, without more, reasons why the continuing-conduct argument had no reasonable prospect. The pleaded events, the claimant’s account of why they occurred and the internal reports he relied on could support a case that required assessment at a full evidential hearing. Though the claim might fail, it was not fanciful. The conclusion that the argument had no reasonable prospect was not reasonably open to the Tribunal. The strike-out decision was set aside.
4. Extension of time. This issue was overtaken by the decision to reinstate the claim. The EAT nevertheless stated that, had it been necessary, it would have dismissed this ground of appeal. The Tribunal’s just and equitable decision was imperfectly reasoned. It was wrong to weigh a speculative view of the merits and to count possible prejudice to the claimant from the unavailability of Barclays’ witnesses as prejudice on the respondent’s side. The reasoning in Hartley v Birmingham City Council [1992] 1 WLR 968 on the limited value of assessing merits was applied. The effect of delay on Barclays’ ability to defend and the claimant’s lack of promptness after May 2022 nevertheless provided a permissible basis for refusing an extension. The Tribunal’s view that obtaining an ACAS certificate promptly was relevant to that assessment was also tenable.
5. The Tribunal’s strike-out decision was set aside. The full claim as pleaded was remitted to an Employment Tribunal for determination on its merits.

1. Employment Appeal Tribunal, [2026] EAT 105 : allowed the appeal against the strike-out, dismissed the Article 6 ground and treated the extension-of-time appeal as academic. The claim was remitted for a merits hearing.
2. Employment Tribunal (Watford): at a preliminary hearing, held that part of the claim was out of time because the continuing-conduct argument had no reasonable prospect of success, and refused an extension of time. The Tribunal’s decisions and written reasons were provided after substantial delay. No citation for the Tribunal decision was stated.