An employment judge had been entitled to conclude that the claimant's claim of race discrimination had been presented out of time and that it was not just and equitable to extend time.
The appellant (C) appealed against a decision of an employment judge that his claim of race discrimination against the first and second respondents (M and X) had been presented out of time and that it was not just and equitable to extend time.
C, who was of Afro-Caribbean ethnicity, had been employed as a housing officer by M. X was his line manager. C issued his claim form on December 6, 2010. His allegations comprised a requirement in the form of a letter dated October 2, 2009 to attend a capability meeting, the holding of that meeting on January 21, 2010 and the issue of a warning on April 30, 2010 in respect of unsatisfactory performance. The employment judge identified the issues as whether any of the allegations of less favourable treatment had occurred after September 7, 2010 (which would lead to a finding that the claim had been brought in time), whether they comprised part of an act extending over a period that went beyond that date and, if the answers to those questions was no, whether it was just and equitable to extend time. C argued before the employment judge that he had been waiting for the outcome of his appeal against a decision dismissing a grievance that he had lodged with M, that that appeal had not been determined until November 2010 and that that matter formed part of an act extending over a period. The employment judge rejected that submission and found that C's allegations of less favourable treatment had all occurred before September 7, 2010. She also concluded that it would not be just and equitable to extend time. Among other things, she did not accept C's assertion that he had been advised by his trade union to postpone the filing of his claim. She also commented that, although medical reports indicated that he had been suffering from depression and anxiety, his state of health was not such as to prevent him from filing a claim within the time limit.
HELD: The employment judge had been entitled to reach the decision that she had. There was no need to specifically plead a continuing act; however, sufficient facts had to be pleaded from which it was clear that a continuing act was asserted. C's pleaded case was limited to the requirement to attend a capability meeting, the holding of that meeting on January 21, 2010 and the issue of a warning on April 30, 2010 in respect of his performance. There was no reference at all to C's grievance in the claim form. It was not for the employment tribunal to find a complaint that had not been pleaded. As to extending time, a very strong case was required to show that there had been a flawed exercise of discretion on its merits. In this case, the employment judge clearly exercised a discretion and weighed up various factors, including the balance of prejudice. It was impossible to say that her exercise of discretion was plainly wrong (see paras 48-50, 52, 57 of judgment).
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