Tribunals have a discretion to hear discrimination claims that are outside the usual three-month time limit if it is just and equitable to do so, for instance as a result of conduct “extending over a period”. However, the Employment Appeal Tribunal (EAT) in Caterham School Ltd v Rose held that, before deciding whether a number of acts of discrimination extended over a period of time, tribunals must hear evidence and make findings of fact. 

Basic facts

After resigning from her job on 24 August 2017, Ms Rose submitted a claim to the tribunal on 29 December for discrimination on the grounds of age and sex, unfair dismissal as well as holiday pay. She also claimed injury to feelings as a result of the harassment and discrimination she alleged that she had suffered. 

She made allegations of discriminatory conduct during 2017. She also claimed harassment by the headteacher in 2011, 2012 and 2017. In relation to the unfair dismissal claim, she alleged a cumulative breach of the implied duty of trust and confidence, starting on 10 January 2017 which lasted up to the date of her resignation.

Relevant time limits 

Section 123(1) of the Equality Act 2010 states that claims cannot be brought after a period of three months, starting with the date of the act to which the complaint relates, or any “such other period as the employment tribunal thinks just and equitable”.

Section 123(3)(a) states that “conduct extending over a period is to be treated as done at the end of the period”.

Tribunal decision

At a preliminary hearing the tribunal found that time had begun to run with regard to the unfair and discriminatory dismissal claims on 24 August 2017. Even allowing for ACAS Early Conciliation, Ms Rose had therefore presented her claims out of time.

As it had been reasonably practicable for her to present the unfair constructive dismissal claim in time, the tribunal dismissed that complaint. However, it decided that it was just and equitable to extend time in respect of the discriminatory constructive unfair dismissal claim as well as the other allegations of discrimination on the basis that, taken together, they amounted to “conduct extending over a period”. As such, time only began to run when Ms Rose resigned.

The school appealed, arguing that the tribunal was wrong to have come to a firm conclusion that the conduct had extended over time before hearing the facts, including whether there had been discriminatory treatment, as Ms Rose alleged. Ms Rose cross-appealed, arguing that the tribunal had failed to recognise that there had been acts of harassment in 2017 as well as 2011 and 2012 and that time should also have been extended to cover these acts in addition to the others. 

EAT decision

Upholding the school’s appeal, the EAT held that the tribunal had come to a definitive decision at the preliminary hearing before considering the evidence and making findings of fact and it had been wrong to do so. The tribunal’s determination should have been restricted at a preliminary hearing as to whether there was an arguable case.

Instead it was for the tribunal at the full hearing to decide whether the school had discriminated against Ms Rose prior to her resignation and if so, whether it constituted conduct extending over a period. It was also for the tribunal at the full hearing to decide whether it was just and equitable to extend time in relation to any such conduct.

It also allowed Ms Rose’s cross-appeal, as there was a complaint of harassment in relation to one alleged incident on 17 January which had not been withdrawn.