If a claimant fails to prove a detriment which is within time, can this unproven detriment extend time by reason of being a continuing act for earlier detriments which are proven but out of time?
No, held the EAT in Royal Mail Group Ltd v Jhuti.
To do otherwise would render the time limit meaningless since any claimant could rely on any act to extend time without the need to prove the same. The Claimant could not rely on the series of similar acts extension under ERA s 48(3)(a).
Claimants are not required to prove every act within the series, they must merely establish at least one in time act and show that this is a continuing act with the otherwise out of time claim.
The EAT also considered a cross-appeal that the tribunal's refusal to adjust an issue beyond the scope of the agreed list was an error. Allowing the cross-appeal, the EAT held that whilst tribunals should not generally explore beyond a list of issues, they are also not required to stick slavishly it. Where necessary in order to address and determine issues properly raised in the evidence and submissions, tribunals can be expected to expand on agreed lists, provided there is no enlargement beyond the pleadings.
Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.