Pupil barrister, Shaniqua McKenzie represented an Appellant in the Employment Appeal Tribunal within just three weeks of being on her feet, securing a successful outcome on appeal.
The appeal concerned whether an act of alleged discrimination amounted to a continuing act, and the impact of that finding on the Tribunal’s discretion to extend time on a just and equitable basis.
Shaniqua accepts instructions across all areas of Employment law. For enquiries or to instruct Shaniqua, please contact the clerks at employment&pi@st-philips.com.
The below article was prepared by Shaniqua analysing the key legal issues arising from the appeal.
Continuing Acts and the Just and Equitable Test A Practical Analysis
This appeal concerned a professional who had been subject to a formal sanction which remained in place for approximately two years. The Claimant contended that both the imposition and ongoing retention of that sanction were discriminatory, arguing that he had been subjected to disproportionate scrutiny compared to those who did not share his protected characteristics.
During that period, the Claimant consistently challenged the sanction through internal and external processes. When proceedings were issued, the claim was approximately nine months out of time.
At first instance, the Employment Tribunal determined that the last act of discrimination was the imposition of the sanction. That finding significantly affected both limitation and the Tribunal’s approach to the just and equitable exercise.
On appeal, I advanced submissions which were accepted in full by the EAT.
A Continuing Act
It was argued that the Tribunal had erred in law by adopting an unduly narrow approach to pleading and substance.
Relying on Khetab v Aga Medical Ltd and others UKEAT/0313/10 at paragraphs 15 and 17, I submitted that the purpose of pleadings is to ensure the opposing party understands the case it must meet. A claimant is not required to use the phrase continuing act where, read as a whole, the ET1 identifies a series of linked acts. The key question is whether the Respondent was on notice.
Here, the ET1 referred not only to the imposition of the sanction but also its retention and duration. The ordinary meaning of that language, together with the Respondent’s engagement with the issue in its ET3, made clear that the continuing act argument was in play.
The EAT accepted that this was sufficient and held that the Tribunal had erred by focusing on a narrow pleading point rather than the substance of the case. It further accepted that the retention of a sanction, and decisions taken to maintain it, can constitute a continuing discriminatory act.
It is common for Respondents to routinely deny any continuing act in their ET3, even where it is not clearly pleaded. This case serves as a reminder that doing so may inadvertently demonstrate that the Respondent understood the argument to be in play. Practitioners should think carefully before advancing boilerplate denials.
The Just and Equitable Discretion
The second issue concerned the Tribunal’s approach to extending time.
As confirmed in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 at paragraph 17, the discretion afforded to Employment Tribunals is extremely wide, but not unfettered. Tribunals are not required to follow a checklist but must consider all relevant factors and avoid overlooking significant ones.
Commonly relevant factors include the length and reasons for delay and any prejudice to the Respondent. The prejudice the judge was concerned with in this case was forensic prejudice; the risk that the fairness of proceedings is compromised by the passage of time – for example, through the loss of evidence, fading witness recollection, or the unavailability of key witnesses.
Where the Tribunal Went Wrong
The Tribunal’s error in identifying the last act had a material consequence. By treating the last act as the imposition of the sanction, it significantly overstated the delay and placed substantial weight on that incorrect period.
The EAT accepted that the asserted forensic prejudice arose from that mischaracterisation. Once it was established that the true delay was approximately nine months, it became apparent that no such forensic prejudice arose.
With the delay correctly understood, there was little in the Tribunal’s reasoning to justify refusing an extension of time.
In those circumstances, the Tribunal had considered an irrelevant factor and its exercise of discretion could not stand.
The appeal was therefore allowed.
This article reflects the law as of the date it was published. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
