Mr V Chumroo v North East London NHS Foundation Trust: 3200178/2024
EMPLOYMENT TRIBUNALS
Case No 3200178/2024
Between
Mr V ChumrooClaimantNorth East London NHS Foundation TrustRespondent
Before
Employment Judge A.M.S. GreenMs I Brown (instructed by Counsel) for claimantMr D O’ Dempsey (instructed by Counsel) for respondentDate 9 August 2024
JUDGMENT
[1]The claimant has no reasonable prospect of establishing that it is just and equitable to extend the time limit for bringing the following parts of the claim of harassment based on his race:a. Element 1: 28 June 2020b. Element 2: 7January 2023 on the basis that the alleged discriminatory acts were not part of the course of conduct or that it is just and equitable to extend the time limit for bringing the complaints of discrimination in relation to those acts.[2]The complaints of discrimination in relation to those acts are therefore struck out under Employment Tribunal Rule 37 (1)(a)
REASONS
[1]The claimant presented a claim of disability and race discrimination to the Tribunal on 21 January 2024 following a period of Early Conciliation that started on 16 November 2023 and ended on 28 December 2023. The claimant subsequently withdrew his claim of disability discrimination.[2]The claimant describes his ethnic origin as Mauritian (African). He is a Senior Mental Health Practitioner (Band 6) who started his employment with the respondent on 30 August 2011. His role involves working within the Havering Home Treatment Team at Goodmayes Hospital, a mental health facility.[3]The claimant's race discrimination claim is based on alleged harassment under the Equality Act 2010 (“EqA”). He claims that he was subjected to unwanted conduct related to his race, specifically referencing three incidents:a. Element 1: 28 June 2020: A Band 3 Support Worker, Mr Lee Butcher, filed a complaint against the claimant, which the claimant believes was maliciously motivated by his race and instigated by Mr David Tyler, his Clinical Lead, with whom he had prior conflicts.b. Element 2: 7January 2023: Mr Wendell Cumberbatch, the claimant's line manager, allegedly made a discriminatory remark, saying, "The revolution within the team has started and I will be getting rid of damn Mauritians," which the claimant found deeply offensive and discriminatory.c. Element 3: August 17, 2023: Mr Philip Dick, a Band 8 ICAH Service Manager, allegedly made a derogatory comment referring to the claimant and his colleagues, saying, "You Mauritians are grouping together," which the claimant found disrespectful and upsetting.[4]The claimant argues that these incidents created a hostile, humiliating, and offensive environment for him, violating his dignity and impacting his mental health to the point where he contemplated suicide. He asserts that these actions amount to race-related harassment, claiming that he was treated less favorably because of his race, particularly because he believes such treatment would not have occurred if he were White.[5]The respondent denies liability, setting out its position in detailed grounds of resistance. The respondent denies all allegations of unlawful discrimination and harassment. They assert that the claimant has not been subjected to the treatment he alleges and challenges the claimant to provide strict proof of the facts. For the purposes of this Public Preliminary Hearing the following grounds of resistance are relevant:a. The respondent argues that any claims related to incidents before 17 August 2023, are time-barred under the EqA 2010, section 123. Since the ET1 was filed on 22 January 2024, and the ACAS early conciliation period ended on December 28, 2023, the respondent contends that any allegations occurring before 17 August 2023, fall outside the statutory three-month time limit.b. The respondent disputes the claimant's suggestion that the earlier incidents, particularly the June 2020 complaint, form part of a continuing series of discriminatory acts. They emphasize that the claimant changed teams and managers in 2022, and there is no direct connection between the earlier incident in 2020 and the later alleged acts in 2023.c. The respondent argues that it would not be just and equitable for the Tribunal to extend the time limit for the earlier claims. They assert that the significant time lapse, particularly for the June 2020 incident, does not warrant an extension, as the claims are grossly out of time and disconnected from the later events.d. Based on these points, the respondent submits that the Tribunal lacks jurisdiction to hear claims related to any acts or omissions before August 17, 2023.[6]The respondent asserts that Elements 1 & 2 are out of time. It accepts that Element 3 is in time.[7]This Public Preliminary Hearing was listed for the Tribunal to consider the following:a. Whether the claims for race discrimination are out of time or form part of a series of allegations or whether it is just and equitable to extend time if they are out of time. In this regard, the respondent seeks an order to strike out Elements 1 & 2 from the claim.b. To consider making a deposit order if the Tribunal does not make strike out orders in respect of Elements 1 & 2 on the basis that if Element 1 and/or 2 taken together or coupled with Element 3 (singly or jointly) form an act extending over a period or that the claim was presented within such further period as the Tribunal should consider just and equitable, the claims have little reasonable prospect of success.[8]Given that the case was listed for a two-hour hearing, it was agreed that it would only be possible to deal with the time limit point. I stated that I would reserve my judgment, and the parties would be able to make further submissions regarding the deposit order later. It was also agreed that any application for a deposit order would be decided without a hearing and on the papers. We also agreed that case management orders to progress the case further would be made later and the parties would send the Tribunal draft directions for consideration.[9]We worked from a digital bundle at the hearing. The claimant worked from a hard copy of the bundle. He adopted his witness statement and gave oral evidence. Ms Brown and Mr O’ Dempsey provided skeleton arguments in advance of the hearing which they adopted, and they made further closing oral submissions.[10]In reaching my decision, I have carefully considered the oral and documentary evidence, the skeleton arguments and closing submissions. The fact that I have not referred to every document included in the bundle should not be taken to mean that I have not considered it. Submissions The claimant Skelton argument[11]Ms Brown submitted detailed written submissions (23 pages). In summary she submitted the following.[12]EqA section 123 imposes a three-month time limit for bringing discrimination claims, starting from the date of the discriminatory act. However, if the acts form part of a continuing course of conduct, the time limit runs from the date of the last act in the series.[13]Ms Brown refers to the following cases:a. Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 is relied upon as authority to establish that at a preliminary hearing, the test is whether the claimant has made a prima facie case that the claims fall within the time limits. If the Tribunal finds that the complaints are capable of being part of a continuing act, the case should proceed.b. Ma v Merck Sharpe and Dohme Ltd [2008] EWCA Civ 1426 is cited to clarify that the claimant must show a reasonably arguable basis for linking the discriminatory acts as part of a continuing course of conduct. The threshold for this argument is lower at a preliminary hearing than at a full merits hearing.c. Bexley Community Centre Trading as Leisure Link v. Robertson [2003] EWCA Civ 576 is relied upon to argue that there is no need for a formal policy or regime to be in place for acts to be considered as continuing over a period. The Tribunal should focus on the substance of the complaints rather than the formality of any policy.d. Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 is cited to support the proposition that the Tribunal should consider whether there was an ongoing discriminatory environment, rather than treating each alleged act as isolated.e. Aziz v FDA [2010] EWCA Civ 304 is cited to show that even if different decision-makers were involved, this does not necessarily preclude the existence of a continuing act. The overall context and connection between the acts should be considered.f. Arthur v London Eastern Railway Limited [2006] EWCA Civ 1358: is authority that the Tribunal should hear evidence before deciding whether acts are part of a series of similar acts. The Court of Appeal in Arthur emphasized that determining time limits without considering the evidence is inappropriate and that tribunals should carefully consider whether there is a factual link between the acts.[14]The Continuing Act Argument: The claimant alleges three specific acts of race discrimination, asserting that they are part of a continuous discriminatory environment at the respondent’s organisation. The most recent act occurred within the primary time limit, and the earlier acts, though outside the three-month period, were part of a continuing discriminatory course of conduct. Ms Brown emphasized the absence of witness evidence from the respondent, which she argues weakens the respondent's case and suggests that the Tribunal should allow the claim to proceed based on prima facie evidence of a continuing act.[15]Just and Equitable Extension: Alternatively, the claimant sought an extension of time under the "just and equitable" provision in the EqA. The claimant had significant health challenges, including kidney failure, dialysis, and a kidney transplant, which prevented him from filing the claim sooner. Ms Brown relied upon Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA, where it was held that Tribunals have broad discretion to extend time limits and should not be unduly restrictive. She also cited Miller and Ors v Ministry of Justice and Ors and another EAT 0003/15 to emphasize that while time limits are generally observed strictly, the Tribunal has the discretion to extend time when justified by the circumstances. Jones v Secretary of State for Health and Social Care [2024] EAT 2 was authority to argue that reliance on a rigid interpretation of time limits, as discussed in Robertson v Bexley Community Centre, should be avoided. The Tribunal's discretion to extend time should be exercised in a manner that considers the broader context and fairness of the case.[16]Ms Brown referred to Szmidt v AC Produce Imports Ltd EAT 0291/14 as authority for the proposition that the Tribunal must balance the prejudice to both parties when deciding whether to extend time. In Szmidt, the Tribunal was overturned for failing to consider this balance adequately.[17]Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194, CA was cited to argue that the reason for delay is relevant but not determinative. The Tribunal can extend time, even if the delay was not entirely justified, provided that it is just and equitable to do so.[18]Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] ICR D5, CA was cited to highlight that the passage of time affects the quality of evidence, and the tribunal should consider the impact of granting an extension on the respondent.[19]Director of Public Prosecutions and anor v Marshall [1998] ICR 518, EAT was authority to argue that the Tribunal should consider when the claimant became reasonably aware of his right to bring a claim, which may justify extending the time limit.[20]Apelogun-Gabriels v Lambeth London Borough Council and anor [2002] ICR 713, CA was cited to argue that ongoing internal procedures, while relevant, do not automatically justify an extension of time. The claimant asserted that he attempted to resolve the issues internally before resorting to legal action, which should be considered in the Tribunal's decision.[21]Additional Arguments on Procedural Fairness: Duffy v George [2013] EWCA Civ 908 was cited to argue that procedural fairness is critical, especially when one party has not provided witness evidence. The absence of testimony from the respondent's alleged discriminators should be considered when deciding whether the Claimant's case on a continuing act is made out.[22]Mr A Kwele-Siakam v The Co-Operative Group Ltd was cited to caution against making preliminary factual findings that could bind the trial Tribunal. Ms Brown emphasised that the Tribunal should not engage in a "mini trial" or make premature determinations based on limited evidence.
Conclusion
[23]The Tribunal is invited to find that:a. The race discrimination claims are in time as part of a continuing discriminatory course of conduct, orb. It would be just and equitable to extend the time limit to allow all claims to proceed.[24]There are significant factual disputes in this case, particularly concerning the existence of a continuing act of discrimination, which should be resolved at a full hearing rather than through summary procedural applications. The case law cited throughout the argument supports the claimant’s position that the Tribunal should err on the side of allowing the claims to proceed to a full merits hearing where all evidence can be properly considered. Oral submissions[25]Ms Brown emphasized points from her skeleton argument, particularly concerning the legal thresholds for assessing claims at this stage. She cited Lyfar and Ma, arguing that the threshold for establishing a prima facie case of continuing acts at this preliminary stage is lower than at a final hearing. The Tribunal should keep this lower threshold in mind when making decisions.[26]Just and Equitable Extension: Referencing Chief Constable of Lincolnshire Police, Ms Brown argued for a broad discretion to extend time limits on just and equitable grounds. She contested the common practice of strictly interpreting time limits, arguing instead for a contextual and discretionary approach.[27]Culture of Discrimination: Ms Brown submitted that the three acts of alleged discrimination (June 2020, January 2023, August 2023) were linked by a pervasive culture of discrimination against Mauritians within the workplace. While acknowledging that each incident involved different individuals, she argued that a prima facie case of a continuing discriminatory environment could be made out, especially without the benefit of live witness evidence to rebut these claims at this stage.[28]Importance of Factual Findings: Ms Brown submitted that without proper evidential analysis, the Tribunal should not prefer the respondent’s evidence over the claimant’s. In discrimination cases, motives and discriminatory culture often require in-depth factual investigation, which cannot be adequately addressed without witness testimony.[29]Just and Equitable Extension – Timeline and Reasons: Ms Brown provided a detailed timeline explaining why the claims were not presented earlier:a. June 2020 Incident: The claimant raised issues contemporaneously but did not frame them as race discrimination.b. October 2020 - January 2022: The claimant was seriously ill, undergoing dialysis and a double kidney transplant, which impacted his ability to pursue legal action.c. Pandemic Impact: The claimant, being clinically vulnerable, was focused on protecting his health during the pandemic, leading to pervasive anxiety that delayed legal action.d. 2023 Delay: After regaining fitness to work around December 2022/January 2023, the claimant sought to resolve issues amicably and pursued internal grievance processes, which concluded in July 2024. These efforts justify the delay in raising claims.[30]Prejudice to Respondent: Ms Brown argued that the respondent would suffer minimal prejudice in defending out-of-time allegations because the issues were raised contemporaneously, albeit not explicitly as race discrimination but they could be inferred. The factual disputes were already known to the respondent, who had opportunities to investigate them.
Conclusion
[31]Ms Brown requested that the Tribunal find a prima facie case of a continuing act of discrimination or, alternatively, extend the time limit on a just and equitable basis. She submitted that the case met the lower threshold required at this preliminary stage, and that the reasons for delay were justified, with minimal prejudice to the respondent. The respondent Skeleton argument[32]No Reasonable Prospects of Success: Mr O’Dempsey submits that there is no reasonable prospect of the claimant showing that Elements 1 and 2 are in time or form part of an act extending over a period. Moreover, there is no reasonable prospect of successfully arguing that these claims should be considered within a further period deemed just and equitable by the tribunal.[33]Fanciful Basis for Continuing Acts: Mr O’Dempsey contends that it is fanciful to suggest that the two out-of-time elements form part of a continuing act of discrimination. The claimant’s argument is based on the alleged targeting of Mauritian employees and an unsubstantiated claim of a workplace culture of mistreating Mauritian staff. Mr O’Dempsey submits that the claimant’s evidence does not demonstrate any such culture or ongoing discriminatory situation.[34]Disparate Incidents: The individuals involved in the alleged harassment are entirely different, with no connection between them. Therefore, the incidents cannot be linked to constitute a continuing act of harassment.[35]No Evidence of a Culture of Harassment: There is no evidence of a practice or ongoing state of affairs in which the claimant was harassed. Mr O’Dempsey dismisses the claimant’s allegations as lacking substance and argues that the existence of a grievance alone is insufficient to link the incidents.[36]Arguments Against Just and Equitable Extension: It is the claimant’s responsibility to convince the Tribunal that it is just and equitable to extend the time limit. The claimant has failed to provide a sufficient explanation for the delay, and the reasons given are inadequate.[37]Impact of Delay on Evidence: The respondent argues that the cogency of evidence relating to specific verbal incidents is likely to be affected by the passage of time, affecting the reliability of witness recollections.[38]Claimant’s Inaction: The claimant did not act promptly after recognizing the alleged discrimination and delayed raising a grievance until 18 May 2023. Despite being a union member, the claimant either failed to seek timely advice or chose not to act on it.[39]Health Issues: Mr Dempsey acknowledges the claimant’s health issues but argues that these did not impede the claimant from bringing a claim during the relevant period. He points out that the claimant was fit enough to work from home from January 2021, which undermines the argument for an extension based on health.[40]Prejudice to the Respondent: The respondent would suffer prejudice if required to address stale claims, particularly regarding incidents from 2020 and 2023, which involve brief verbal exchanges that are difficult to recall accurately after a significant time lapse.[41]Weakness of the Claims: Mr O’Dempsey asserts that the underlying claims are so weak that they should be struck out for having no reasonable prospect of success. The Respondent cites Kolev v Middlesex University [2023] EAT 173 to argue that the tribunal should not entertain claims that are unlikely to succeed on their merits.[42]Strike-Out Principles:a. Exceptional Circumstances: Mr O’Dempsey acknowledges that striking out claims is an exceptional measure but argues that it is appropriate in this case due to the clear lack of reasonable prospects of success. The Respondent cites A v B and C UKEAT/0450/08 to support the argument that claims should be struck out where the connection between the alleged discriminatory acts is utterly fanciful.b. Overriding Objective: Striking out the first two elements would serve the overriding objective by reducing the need for certain managers to give evidence and shortening the proceedings. The Respondent also references Kaul v MoJ [2023] EAT 41 to argue that implausible claims should be struck out to prevent the misuse of Tribunal resources.
Conclusion
[43]Mr O’Dempsey invites the Tribunal to do the following:a. Strike out Elements 1 and 2 of the claimant’s race harassment claims due to their lack of reasonable prospects of success and the fact that they are out of time.b. Refuse the claimant’s request for a just and equitable extension of time.[44]The claims should be dismissed as they do not form part of a continuing discriminatory act, are unsupported by credible evidence, and would unduly burden the tribunal and the respondent if allowed to proceed. Oral submissions[45]Mr O’Dempsey made the following submissions.a. He agreed with the legal principles cited by Ms Brown but emphasized a different interpretation. He argued that the test is whether it is "reasonably arguable" that a continuing act exists, rather than simply whether it is "capable" of being a continuing act.b. He insisted that the Tribunal must rule out any arguments that are not reasonably arguable and should not accept mere assertions without sufficient evidence.c. The claimant had failed to provide evidence of a common motive or culture of discrimination against Mauritians within the organization. He argued that it is not the respondent's responsibility to rebut this assertion, but rather for the claimant to prove it.d. He criticized the claimant's witness statement, suggesting that it lacked credibility and appeared to have been prepared by the claimant's representatives rather than being the Claimant's own work. He emphasised that he was not criticizing the claimant’s representatives as they would have prepared the statement on the claimant’s instructions.e. Additional particulars involving only two individuals were deemed insufficient to establish a widespread culture of racism within the organization. Mr O’Dempsey argued that the claimant’s case amounted to a "fanciful" assertion of a continuing act without substantive evidence.f. He stressed the importance of assessing the claimant’s credibility in determining whether a reasonably arguable case of a continuing act exists. He argued that the claimant had not provided sufficient evidence to support this claim and that his assertions were not credible.g. He argued against granting a just and equitable extension of time, again focusing on the claimant’s credibility. He questioned why the claimant had not provided emails or other evidence to support his timeline and explanations for the delay in bringing the claim.h. While acknowledging the claimant's physical health issues, Mr O’Dempsey argued that these did not prevent him from pursuing his claim or seeking assistance from his union earlier. He suggested that the claimant's delay was a matter of choice, prioritizing his health over legal action, and that this did not justify extending the time limits.i. He also noted that while the claimant claimed to have been racially harassed in January 2023, he took no immediate action and provided no details about whom he approached for help at that time.j. Mr O’Dempsey highlighted the prejudice the respondent would face in defending the claims due to the late filing. He argued that a grievance process was conducted, but it did not focus on discrimination, which would have triggered a more thorough investigation. He emphasized the significant delay and the difficulty in addressing claims brought so late.[46]In conclusion Mr O’Dempsey argued that the claimant’s case fails to meet the standard for a reasonably arguable continuing act of discrimination and that the time limits should not be extended on a just and equitable basis. He emphasized the lack of credible evidence from the claimant, the absence of a demonstrated culture of discrimination, and the prejudice the respondent would face in defending the out-of-time claims. Findings Reliability and credibility
Findings
[47]By way of general observation, there were instances where I found the claimant to be an unreliable witness in that he did not answer some of the questions that were put to him under cross examination. Tribunals may draw adverse inferences from a witness’ refusal to answer questions. For example, if a witness avoids answering questions that relate to key aspects of their case, the Tribunal can infer that the true answer would be unfavorable to the witness’ position. The Tribunal can infer that the witness is unwilling to face scrutiny on certain points, which could lead to the conclusion that the witness’ evidence is unreliable. That is what I have done in this case.[48]The claimant also introduced new and significant lines of evidence under cross examination which should have been set out in his witness statement or derived from contemporaneous documents. A witness statement is expected to provide a comprehensive account of the key facts and events relevant to the case. It should be a full and accurate reflection of the evidence that the witness intends to present. If significant claims or assertions emerge for the first time during cross-examination, it raises concerns about the completeness and reliability of the witness statement. I have those concerns.[49]Introducing new claims during cross-examination, especially if those claims are crucial to the case (such as assertions about relationships between key individuals or connections between incidents), can suggest that the witness’s testimony is not consistent or fully credible. The omission of these claims from the witness statement can be interpreted as an attempt to adjust or enhance the testimony in response to the direction of the questioning, rather than presenting a straightforward and honest account from the outset.[50]Tribunals place a high value on consistency in a witness's evidence. Inconsistencies, particularly between a witness statement and oral testimony, can lead to doubts about the overall truthfulness and reliability of the witness. The Tribunal may view the failure to include key details in the witness statement as a deliberate omission or as evidence that the witness’s account is unreliable.[51]With these point in mind, I note the following:a. During cross-examination, the claimant asserted that Mr Tyler, Mr Butcher, and Mr Cumberbatch were "good friends,” and that this connection implied a coordinated effort in discriminatory behavior. This was a crucial point in trying to establish a continuing act of discrimination. No contemporaneous emails, notes, or other documents were provided to corroborate this alleged friendship or social connection between these three managers, which would have been critical in supporting the claimant's case. I acknowledge that in a letter dated 18 May 2023 [72] setting out the claimant’s grievance the claimant asserted that Mr Tyler is a friend of Mr Butcher [73]. This point was drawn out during re-examination. However, this does not support the claimant’s claim, that the three men were friends. Mr Cumberbatch is not mentioned.b. The claimant stated during cross-examination that he asked his line manager in December 2020 to investigate the issue of racial harassment. This claim was made to bolster the argument that he had raised concerns about racial harassment contemporaneously. This request was not mentioned in the claimant's witness statement. Such an omission is significant because raising a concern about racial harassment in 2020 would have been an important part of establishing a continuing act. One could reasonably have expected this to have been referred to in the witness statement. The complaint was essentially about bullying.c. The claimant did not provide any emails or other documents from December 2020 that showed he had requested such an investigation. The absence of such evidence is problematic, especially since emails or other records could have substantiated this claim.d. During cross-examination, the claimant mentioned that he contacted the RCN for advice and support in April or May 2023, but was vague about the exact timing and frequency of these interactions. The claimant’s witness statement did not specify when he contacted the RCN, which would have been important to explain the delay in filing the grievance and pursuing legal action. This lack of detail diminishes the clarity of his argument that he was actively seeking resolution but was impeded by his health and other factors.e. The claimant suggested during cross-examination that his frequent hospital visits and fear of contracting COVID-19 made it difficult to pursue the matter earlier. He claimed that he was focused on his health and had little opportunity to raise concerns with the respondent during this period. His explanation for the delay was not fully developed in his witness statement. Additionally, no specific details were provided about how his health condition and hospital visits directly prevented him from taking action.[52]These examples highlight significant gaps between the claimant’s assertions during cross-examination and the contents of his witness statement and supporting documents. The lack of prior mention or documentary support for these claims undermines the credibility of the claimant’s argument for a continuing act of discrimination or the just and equitable extension of time limits.[53]Element 1: Complaint by Mr Butcher instigated by Mr Tyler (28 June 2020) The claimant’s witness statement The claimant asserts that the complaint made by Mr Butcher, allegedly instigated by Mr Tyler, was racially motivated and part of a discriminatory culture against Mauritians. His assertion of a "culture" within the workplace was based primarily on his personal experience and an email from his representative referencing similar issues faced by other Mauritian colleagues. Cross examination The claimant admitted that his assertion of a workplace culture was based on limited evidence and did not provide specific examples of general mistreatment of Mauritians outside his own experiences. He also failed to produce contemporaneous evidence of having raised concerns about racial harassment at the time of the incident in 2020. Re-examination The claimant reiterated that Mr Tyler and Mr Butcher were friends, implying a connection between them, but provided no substantive evidence of collusion or a common discriminatory motive.[54]Element 2: Comment by Mr Cumberbatch (January 2023) The claimant’s witness statement The claimant alleged that Mr Cumberbatch made a racially discriminatory comment in January 2023, stating, "The revolution within the team has started and I will be getting rid of damn Mauritians." The claimant pointed to this incident as part of the continuing discriminatory conduct he faced. Cross examination The claimant did not provide any evidence connecting Mr Cumberbatch to Mr Butcher or Mr Tyler, beyond the assertion that they were "good friends." As already commented on above, the claimed friendship was limited to Mr Butcher and Mr Tyler and not the three men. As commented on above, he did not include this connection in his written statement and only mentioned it during oral evidence, which raises concerns about the credibility of this claim. Re- examination The claimant maintained that Mr Cumberbatch and Mr Tyler were friends, but again, no concrete evidence was presented to substantiate this or to suggest that this friendship contributed to a broader discriminatory culture.[55]Element 3: Comment by Mr Dick (17 August 2023) The claimant’s witness statement The claimant reported that Mr Dick made a racially offensive comment, "You Mauritians are grouping together," in August 2023. The claimant confronted Mr Dick, who immediately apologized. Cross examination It was highlighted that two other colleagues present during the incident contradicted the claimant’s account regarding the language spoken and whether they found Mr Dick's comment offensive. The claimant did not provide any evidence linking Mr Dick’s comment to the earlier incidents or suggesting a coordinated discriminatory effort. Re-examination The claimant did not offer any new information linking Mr Dick to the other managers involved in the previous incidents. Legal and factual analysis Time limits Statutory provision[56]I now turn to consider time limits. EqA, section 123(1) provides that proceedings of this nature may not be brought after the end of:a. the period of 3 months starting with the date of the act to which the complaint relates, orb. such other period as the employment tribunal thinks just and equitable.[57]EqA, section 123 and its legislative equivalents do not specify any list of factors to which a Tribunal is instructed to have regard in exercising the discretion whether to extend time for ‘just and equitable’ reasons. Accordingly, there has been some debate in the courts as to what factors may be relevant to consider.[58]The question of when the time limit starts to run is more difficult to determine where the complaint relates to a continuing act of discrimination, such as harassment, or to a discriminatory omission on the part of the employer, such as a failure to confer a benefit on the employee. EqA, section123(3) makes special provision relating to the date of the act complained of in these situations. It states that:a. conduct extending over a period is to be treated as done at the end of that period (section123(3)(a)).b. failure to do something is to be treated as occurring when the person in question decided on it (section123(3)(b)). In the absence of evidence to the contrary, a person is taken to decide on a failure to do something either when that person does an act inconsistent with doing something, or, if the person does no inconsistent act, on the expiry of the period within which he or she might reasonably have been expected to do it (section123(4)). Continuing act of discrimination[59]Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 and Ma v Merck Sharpe and Dohme Ltd [2008] EWCA Civ 1426 establish that the threshold for determining whether incidents form part of a continuing act is relatively low at a preliminary hearing. The test is whether it is "reasonably arguable" that the acts are connected as part of a continuous discriminatory behavior, rather than whether it is merely "capable" of being a continuing act.[60]Jones v Secretary of State for Health and Social Care [2024] EAT 2 This case clarifies that Tribunals have a wide discretion to extend time on just and equitable grounds and cautions against rigidly applying time limits without considering the broader context.[61]Element 1: The claimant’s assertion that the complaint made by Mr Butcher, allegedly instigated by Mr Tyler, was racially motivated and part of a continuing discriminatory culture is not sufficiently supported by evidence. The claimant failed to provide contemporaneous documentation or detailed witness testimony that establishes a connection between this incident and the subsequent incidents in 2023. The significant time gap between the incidents further weakens the argument for a continuing act. Under the "reasonably arguable" standard, this element does not appear to meet the threshold for being part of a continuing act.[62]Element 2: The claimant did not provide evidence of a direct connection between Mr Cumberbatch’s actions and the previous incident involving Mr Tyler and Mr Butcher. The claimant's attempt to link these individuals as "good friends" only emerged during cross-examination and was not supported by contemporaneous evidence or mentioned in the witness statement and only pointed to a friendship between Mr Tyler and Mr Butcher. This undermines the argument that this incident is part of a continuing act.[63]Element 3: This incident is within the time limit but stands alone, with no credible evidence suggesting it is connected to the previous incidents as part of a continuous series of discriminatory acts. The claimant's failure to establish a connection between Mr Dick and the other managers further weakens the argument for a continuing act. Just and Equitable Extension of Time[64]Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA emphasizes that when deciding whether to grant an extension of time on just and equitable grounds, the Tribunal should consider the reason for the delay, the length of the delay, and any prejudice to the respondent.[65]Jones v Secretary of State for Health and Social Care [2024] EAT 2 reiterates that Tribunals have broad discretion to extend time limits and that rigid adherence to time limits should be avoided if it would be unjust, particularly in cases where the claimant's circumstances have made it difficult to bring a claim in a timely manner.[66]Reason for Delay: The claimant asserts that his health issues, including chronic kidney failure, dialysis, and a kidney transplant, coupled with the need to shield during the COVID-19 pandemic, made it difficult for him to pursue his claims earlier. However, under cross-examination, it emerged that the claimant was mentally well enough to work from home and communicate with his employer from November 2020 onward. The claimant's delay in raising the grievance until May 2023 and the lack of specific evidence showing efforts to seek advice or raise concerns during this period weakens the argument for an extension.[67]Length of Delay: The delay in bringing the claim for the June 2020 incident is substantial, over three years. While the claimant’s health issues are a significant factor, the evidence presented does not convincingly show that these issues fully justified the delay, particularly since the claimant was in contact with his employer during the pandemic.[68]Prejudice to the respondent: The respondent submits that it would face significant prejudice in defending against claims related to the Elements 1 & 2 due to the passage of time, which may have affected the availability of witnesses and the reliability of their recollections. This potential prejudice, combined with the lack of contemporaneous complaints about racial harassment, weighs against granting an extension. Conclusion on time limits[69]Applying the relevant case law to the facts and evidence, the Tribunal finds that the three elements do not constitute a continuing act of discrimination. The claimant has not met the "reasonably arguable" standard required to establish a continuous series of discriminatory acts. Additionally, the significant delay in bringing the claims, coupled with the lack of convincing evidence that the delay was unavoidable due to health reasons, does not warrant a just and equitable extension of time. The respondent's arguments regarding the prejudice they would face due to the delay further support this conclusion. Strike out[70]Rule 53 (1) (c) of the Rules of Procedure confirms that a Tribunal has the power to consider the issue of strike at out a preliminary hearing. Rule 37 sets out the grounds on which a Tribunal can strike out a claim or response (or part). A claim or response (or part) can be struck out on a variety of grounds including that it is scandalous or vexatious or has no reasonable prospect of success (rule 37 (1) (a)).[71]I acknowledge that striking out a claim or part of a claim is a draconian step and should not be taken lightly. I remind myself that in Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL, discrimination cases are generally fact sensitive, and any issues should usually only be decided after all the evidence has been heard. However, in that case, Lord Hope observed: The time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail[72]Important guidance in relation to striking out a claim in relation to time limits is found in E v X, L and Z UKEAT/0079/20 (10 December 2020, unreported) the immediate point in this appeal was that a second Employment Judge had erred in overturning a case management decision of the first Employment Judge without these being a change in circumstances. However, of more general importance is the context, namely a striking out of a claim raising the always difficult area (on time limits) of whether the claimant can rely on the concept of 'acts extending over a period'. The judgment of Ellenbogen J in the EAT at [50] subjects this question to lengthy guidance in the light of six leading cases, namely Sougrin v Haringey Health Authority [1992] IRLR 416, Robinson v Royal Surrey County Hospital NHS Foundation Trust UKEAT/0311/14 (30 July 2015, unreported), Sridhar v Kingston Hospital NHS Foundation Trust UKEAT/0066/20 (21 July 2020, unreported), Caterham School Ltd v Rose UKEAT/0149/19 (22 August 2019, unreported), Lyfar v Brighton & Sussex University Hospitals NHS Trust [2006] EWCA Civ 1548, and Aziz v FDA [2010] EWCA Civ 304. The guidance is lengthy, but is important and is set out here in full:a. In order to identify the substance of the acts of which complaint is made, it is necessary to look at the claim form: Sougrin.b. It is appropriate to consider the way in which a claimant puts their case and, in particular, whether there is said to be a link between the acts of which complaint is made. The fact that the alleged acts in question may be framed as different species of discrimination (and harassment) is immaterial: Robinson.c. Nonetheless, it is not essential that a positive assertion that the claimant is complaining of a continuing discriminatory state of affairs be explicitly stated, either in the claim form, or in the list of issues. Such a contention may become apparent from evidence, or submissions made once a time point is taken against the claimant: Sridhar.d. It is important that the issues for determination by the tribunal at a preliminary hearing have been identified with clarity. That will include identification of whether the tribunal is being asked:(1) to consider whether a particular allegation or complaint should be struck out, because no prima facie case can be demonstrated; or(2) substantively to determine the limitation issue: Caterham.e. When faced with a strike-out application arising from a time point, the test which a tribunal must apply is whether the claimant has established a prima facie case, in which connection it may be advisable for oral evidence to be called. It will be a finding of fact for the tribunal as to whether one act leads to another, in any particular case: Lyfar.f. An alternative framing of the test to be applied on a strike-out application is whether the claimant has established a reasonably arguable basis for the contention that the various acts are so linked as to be continuing acts, or to constitute an on-going state of affairs: Aziz; Sridhar.g. The fact that different individuals may have been involved in the various acts of which complaint is made is a relevant, but not conclusive, factor: Aziz.h. In an appropriate case, a strike-out application in respect of some part of a claim can be approached assuming, for that purpose, the facts to be as pleaded by the claimant. In that event, no evidence will be required – the matter will be decided on the claimant's pleading: Caterham.i. A tribunal hearing a strike-out application should view the claimant's case, at its highest, critically, including by considering whether any aspect of that case is innately implausible for any reason: Robinson.j. If a strike-out application succeeds, on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success (whether because of a time point or on the merits), that will bring that complaint to an end. If it fails, the claimant lives to fight another day, at the full merits hearing: Caterham.k. Thus, if a tribunal considers (properly) at a preliminary hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out: Caterham.l. Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence to be considered at the preliminary hearing, findings of fact and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the full merits hearing: Caterham.m. If it can be done properly, it may be sensible, and, potentially, beneficial, for a tribunal to consider a time point at a preliminary hearing, either on the basis of a strike-out application, or, in an appropriate case, substantively, so that time and resource is not taken up preparing, and considering at a full merits hearing, complaints which may properly be found to be truly stale such that they ought not to be so considered. However, caution should be exercised, having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case; the fact that there may be no appreciable saving of preparation or hearing time, in any event, if episodes that could be potentially severed as out of time are, in any case, relied upon as background to more recent complaints; the acute fact-sensitivity of discrimination claims and the high strike-out threshold; and the need for evidence to be prepared, and facts found (unless agreed), in order to make a definitive determination of such an issue: Caterham.[73]No Prima Facie Case for Continuing Acts (E v X and Lyfar): Two points arise:a. The claimant has failed to establish a prima facie case that the incidents in Elements 1 and 2 are part of a continuing act of discrimination. According to Lyfar, the Tribunal must determine whether one act leads to another as part of a continuous series. In this case, there is a significant gap between the June 2020 incident (Element 1) and the January 2023 incident (Element 2), with no credible evidence linking these acts as part of an ongoing discriminatory state of affairs.b. Additionally, under E v X, the test is whether the claimant has established a "reasonably arguable basis" for the contention that these acts are linked as continuing acts. The claimant's late assertions during cross-examination, unsupported by prior evidence or documentation, do not meet this standard. The absence of a direct connection between the individuals involved in these incidents further weakens the argument for a continuing act.[74]Critical Evaluation of the claimant’s case (Robinson): Following Robinson, the Tribunal must critically evaluate the claimant’s case at its highest, especially when there is a strike-out application. The late emergence of key claims during cross-examination, which were not included in the witness statement, raises concerns about the credibility and reliability of the claimant’s account. This inconsistency suggests that the claimant’s case may be "innately implausible," particularly the assertion that there was a continuous discriminatory environment linking these incidents.[75]Strike-Out of Out-of-Time Claims (Caterham): Caterham provides that if there is no reasonable prospect of establishing that a particular incident, which would otherwise be out of time, forms part of a continuing act with other incidents, such a claim may be struck out. Here, Element 1 (June 2020) is clearly out of time and does not reasonably connect with Element 2 (January 2023). The Tribunal has found no basis to consider these as part of a continuous act. Therefore, under the guidance of Caterham, Elements 1 and 2 should be struck out as there is no reasonable prospect of success in linking it to a continuing act.[76]Difficulty of Proving a Continuing Discriminatory State (Aziz): Aziz highlights that different individuals involved in various acts do not automatically indicate a continuing act of discrimination. In this case, the Claimant’s attempt to link the actions of Mr Tyler, Mr. Butcher, and Mr Cumberbatch as part of a broader culture of discrimination against Mauritians is unsupported by evidence. The Tribunal has found that these incidents are disconnected and do not suggest a coordinated or ongoing discriminatory state of affairs. Thus, there is no reasonable basis to consider these as part of a continuing act.[77]Importance of a Preliminary Hearing to Save Resources (Caterham): Given the Tribunal’s findings, proceeding with Elements 1 and 2 would likely be a waste of time and resources, as these claims are unlikely to succeed. Caterham says that in such cases, it is beneficial to resolve these issues at a preliminary hearing to avoid unnecessary litigation over stale claims. The Tribunal’s decision to strike out these elements now, rather than letting them proceed to a full merits hearing, aligns with this principle, ensuring that the Tribunal's resources are focused on claims with a reasonable prospect of success.
Conclusion
[78]Considering the findings that Elements 1 and 2 are not part of a continuing act and the application of the relevant case law, and there is no justification to extend time on just and equitable grounds, there is a strong basis to strike out both elements. Elements 1 and 2 of the claim are struck out.