Race Discrimination Claim Was Not Too Late

Posted: 12th January 2013

An Employment Tribunal erred when it struck out an employee’s race discrimination claim on grounds that it had been lodged too late. In ruling that the claim was out of time, the tribunal had wrongly focused on a single incident and had not recognised that the complaint was one of continuing discrimination.

The black employee, a fork lift truck driver working for a supermarket chain, had lodged a Dignity-at-Work grievance against a fellow worker in June 2009. After a lengthy delay, which the employee claims was the result of race discrimination, his grievance was upheld. The employee alleges that an initial offer of compensation was ‘taken off the table’ after consultation with management.

The employment tribunal declined jurisdiction to hear his claim on grounds that it had been lodged outside the three-month time limit laid down by the Race Relations Act 1976. The tribunal ruled that time had started to run on June 4 2010, when the employee was informed that witnesses did not support his grievance, and that the proceedings, which were lodged in October 2010, were therefore out of time. The Employment Appeal Tribunal subsequently dismissed the employee’s appeal on grounds that it raised no issue of law.

In allowing the employee’s appeal, the Court of Appeal ruled that, on a true analysis, his complaint was one of continuing victimisation and discrimination that extended beyond June 4 2010 and encompassed the withdrawal of the compensation offer in August 2010 and alleged detrimental treatment arising from previous employment tribunal proceedings he had instituted against the same employer.

The Court of Appeal expressed no view on the merits of the employee’s complaint which will now go forward for a full hearing before an employment tribunal.