Should the tribunal consider conduct after an ET1 is filed?

Should the tribunal consider conduct after an ET1 is filed?

Yes held the Employment Appeal Tribunal (EAT) in Sakyi-Opare v Albter Kennedy Trust.

The Claimant started a 100-day placement with the Respondent – a requirement of her degree with Brunel University to become a social worker – on 11 October 2017.  An employee of the Respondent who was supervising the Claimant resigned and the Claimant’s placement was terminated on 18 April 2018. 

The Claimant is a Christian. The Respondent, as described by the Claimant in her ET1 “is a well-known LGBT youth homeless charity”.

The Claimant states that the Respondent made a complaint to the University about the Claimant’s suitability as a professional social worker, regarding alleged negative comments made by the Claimant. The Claimant stated that these allegations resulted in professional suitability proceedings against her. The Respondent stated that it did not make a complaint but responded to the University’s request for information about how the Claimant behaved on the placement. 

The Claimant filed claims of discrimination and harassment on grounds of religion in breach of the Equality Act 2010 on 5 October 2018. The last act complained of in the ET1 was 24 May 2018. Therefore, it was considered that the claim was filed out of time.

In her claim the Clamant contended that the on-going professional suitability proceedings by her University, which she says were triggered by the Respondent, were part of a course of conduct that was ongoing at the time of filing her claim. Her was claim therefore in time. Alternatively, she sought an extension of time on just and equitable grounds.

The Claimant was informed on 22 January 2019 that the University had been informed by the Respondent that she had filed a claim against it. The Claimant made an application to amend her Particulars of Claim on the grounds that the Respondent contacted the University after issuing her claim which amounted to a continuing act of harassment.

At a Preliminary Hearing the Employment Tribunal dismissed the claim stating that the claim was lodged out of time, and it was not just and equitable to extend.  The Judgment did not determine the Claimant’s application to amend her Particulars of Claim.

The Claimant appealed.  

In applying Prakash v Wolverhampton City Councilthe EAT held that the employment tribunal erred in law in not determining the Claimant’s application to amend her claim. It did not matter that the issues raised post-dated the filing of her claim. The matters raised were also potentially relevant both to the question of whether the Claimant had demonstrated a prima facie case that her complaint was one of conduct extending over a period for the purposes of section 123(3)(a) of the Equality Act 2010 and to the question of whether, if she had not established a prima facie case, time ought to have been extended in relation to both. The tribunal should have considered the application to amend prior to considering whether the claim was in time.

The application to amend the claim and the issues raised with regard to time limits were remitted to the employment tribunal for re-hearing.

You can read the full judgment here.

This update was written by Joanne Sinclair, Trainee, didlaw.