When considering, under s123 of the Equality Act 2010, whether discriminatory acts extend over a period of time (to determine if it is just and equitable to extend time to hear a complaint), should a tribunal hear evidence?
Yes, held the EAT in Caterham School v Rose.
The Claimant resigned on 24th August 2017, and put in a claim on 29th December 2017, which, allowing for ACAS conciliation, was out of time. At a preliminary hearing, some claims were dismissed, but for discrimination complaints alleged to be acts extending over a period, the tribunal found that it was just and equitable to extend time, having considered only the pleadings.
The EAT held that the tribunal made an error of law by deciding it was just and equitable to extend time on that basis, rather than on the basis of evidence. Without hearing evidence, the employment judge did not make (and could not have made) any findings of fact so as to be able to decide whether or not to extend time. Without findings of fact, it is not possible to decide whether any matters complained of formed part of conduct extending over a period.
The EAT contrasted the approach to extending time for acts extending over a period, which requires evidence, with deciding whether or not claims should be struck out as out of time, which can be done on the Claimant's pleadings, if it has no reasonable prospects of success.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary.