ECR I-4135 - EU Law; interpretation; national courts must interpret national law in light of the wording and purpose of EU directives.
Discrimination; time limits; a 'continuing act' distinguishes a policy or regime from a one-off decision.
Stay of proceedings; choice of forum. On an application to stay, the question is in which forum the action would most conveniently and appropriately be tried, having regard to complexity, the amount involved, technicality of the evidence and the appropriateness of the procedures. There is no presumption in favour of the tribunal or of the claimant's chosen forum.
Limitation; discrimination; just and equitable extension under s.123(1)(b) EqA; EAT suggested a checklist of factors modeled on s.33(3) Limitation Act 1980, including length/reasons for delay, promptness, and effect on evidence, though subsequent authority has clarified this is a guide, not a rigid checklist.
Practice; time limits; extension of time for a response. The EAT (Mummery J) set out the test for whether it is just and equitable to extend time for a late response, which tribunals still apply under the overriding objective. Exercising the discretion means taking into account all relevant factors, weighing them against one another and reaching a conclusion objectively justified on grounds of reason and justice. Three factors must always be considered: the employer's explanation, the more serious the delay the more important a satisfactory and honest one; the balance of prejudice, whether refusal would prejudice the employer more than grant would prejudice the claimant; and the merits of the defence, since justice often favours an extension where the defence has some merit. The discretion is wide and hard to appeal, but the judge here had ignored merits and prejudice, so the employer's appeal succeeded [IDS, Practice and Procedure, 6.18-6.19].
Sex discrimination and time limits; Court of Appeal held that an employer's refusal of a request (such as part-time work) can constitute a continuing act or policy, and successive refusals form conduct extending over a period under s.123(3)(a) EqA.
Res judicata; Henderson v Henderson abuse; second ET claim. A race discrimination claim founded on evidence that emerged mid-hearing of an earlier unfair dismissal complaint (the 'African accent' remark) was barred: the Henderson v Henderson rule applies with full force in the employment tribunal, and the factors relied on by the EAT — lay representation, the point emerging without warning, no prompt from the tribunal — did not amount to special circumstances. The rule exists to avoid multiplicity of litigation, with its wasted cost, duplication of effort, dispersal of evidence and risk of inconsistent findings (Potter LJ at 898).
Res judicata; cause of action estoppel; withdrawal to pursue High Court claim. Where a claimant withdraws an ET breach of contract claim having expressly reserved the right to pursue the same claim in the High Court because of the £25,000 jurisdictional cap, the tribunal's dismissal on withdrawal does not create a cause of action estoppel: the order was never intended as a final determination on the merits, and barring the civil claim would offend the principle of justice underlying res judicata rather than serve it. Distinguishes Barber v Staffordshire County Council, where the claim was abandoned outright with no intention to litigate elsewhere.
Leading authority on 'conduct extending over a period' for the purposes of discrimination time limits (now s.123(3)(a) EqA 2010). For there to be conduct extending over a period there must have been an ongoing situation or continuing state of affairs that was discriminatory. The concepts of policy, rule, practice, scheme or regime are illustrations, not an exhaustive list of the indicia of a continuing act.
Jurisdiction; territorial reach; unfair dismissal; peripatetic and expatriate employees. Three conjoined appeals. Lord Hoffmann declined to formulate a verbal test of territorial scope but held that s.94(1) ERA 1996 applies, as a general principle, to the employee working in Great Britain at the time of dismissal. A peripatetic employee is treated as employed at the base where assignments begin and end, judged by how the contract operated in practice. An expatriate working and based abroad qualifies only in exceptional cases: posted abroad by a British employer for the purposes of a business carried on in Great Britain, working in what amounts to a British enclave abroad, or otherwise showing equally strong connections with Great Britain and British employment law [IDS 2.116]. Duncombe and Ravat later refined this: a sufficiently strong connection suffices for those working partly here; those working wholly abroad need a much stronger connection than with any other system [IDS 2.115].
Discrimination; jurisdiction; the Employment Tribunal has jurisdiction over qualifications bodies.
Jurisdiction; EU rights; directly effective EU rights can be enforced in the UK even if the employment is outside Great Britain.
Jurisdiction; territorial scope; teachers employed by the UK government in European Schools were within UK jurisdiction.
Res judicata; taxonomy. Lord Sumption's authoritative restatement (paras 17-26): 'res judicata' is a portmanteau term covering five distinct principles — cause of action estoppel (absolute as to points actually decided), merger in judgment, issue estoppel (capable of exception where new material emerges), the Henderson v Henderson rule against raising points that could and should have been raised earlier, and the broader doctrine of abuse of process. The standard starting point for any relitigation argument, in the ET as elsewhere.
Res judicata; issue estoppel; dismissal for want of jurisdiction. No estoppel arises from an ET's dismissal of a discrimination claim as out of time where there has been no adjudication of any substantive issue: the claimant could pursue a personal injury claim in the High Court on the same facts. A jurisdictional dismissal is not automatically incapable of founding an estoppel — it binds as to any issue actually decided — but where the tribunal never engaged with the merits there is nothing on which an estoppel can bite.
Holiday pay; Working Time Regulations 1998; non-guaranteed overtime; series of deductions. Conjoined EAT appeals with Hertel (UK) Ltd v Woods and Amec Group Ltd v Law. Pay for non-guaranteed overtime the worker is required to work counts as normal remuneration for the four weeks' leave under reg 13, and a gap of more than three months between underpayments breaks a 'series of deductions' for s.23 ERA 1996. The three-month rule was overruled by the Supreme Court in Chief Constable of the Police Service of Northern Ireland v Agnew [2023] UKSC 33.
Discrimination and time limits; EAT held that a continuing course of conduct requires constituent acts to be discriminatory; if a constituent act is non-discriminatory, it cannot link earlier acts to form a continuing state of affairs, breaking the chain.
Holiday pay; unlawful deductions; series of deductions. A 'series' of deductions is not automatically broken by a gap of three months or more between underpayments, nor by an intervening lawful payment: whether deductions form a series is a question of fact, and underpayments linked by a common fault — here the systematic calculation of holiday pay at basic pay rather than normal pay — can constitute a series despite such gaps. Disapproves the three-month-gap rule derived from Bear Scotland v Fulton.
Discrimination; time limits; conduct extending over a period (s.123(3) EqA 2010). The EAT held that conduct extending over a period need not all relate to the same protected characteristic or type of prohibited conduct, but this may be harder to establish. Crucially, it is not enough that incidents are linked (e.g. arising from the same restructuring); there must be an 'ongoing situation or a continuing state of affairs' that is discriminatory (Hendricks). Where incidents involve different people, different characteristics, and substantial gaps in time, the tribunal must clearly identify the continuing discriminatory conduct.
Jurisdiction; state immunity; administrative staff of a diplomatic mission. The EAT dismissed Malaysia's cross-appeal against a finding that it had no immunity under s.16(1)(aa) SIA 1978 in a wages claim by a High Commission employee. Applying Benkharbouche, Costantine and Alhayali, whether the employment of administrative and technical staff is an exercise of sovereign authority turns on the proximity of the employee's functions to the governmental functions of the mission, an evaluative judgment for the tribunal [41]-[47]; that the work assists the mission is not enough [56]. A claim for pay under an alleged past agreement did not engage sovereign authority: it sought compensation for past treatment, not appointment or reinstatement, so did not restrict the state's right to choose its staff [72]-[74]. Immunity may still attach where a claim engages sovereign interests, such as dismissal for reasons of state security or a challenge to recruitment policy [30], [38].