Caterham School Ltd v Rose UKEAT/0149/19/RN

Appeal against the ET’s judgment at a Preliminary Hearing allowing the Claimant’s direct discrimination claims to proceed, even though they were submitted out of time. Appeal, and Claimant’s cross-appeal, allowed.

The Claimant, who was employed by the Respondent until she resigned, brought proceedings in the ET for discrimination on the grounds of age and sex, unfair dismissal, and a claim for holiday pay. The ET concluded that the claims of unfair dismissal, unpaid holiday pay and harassment were submitted out of time and would be dismissed but, in relation to the claims of direct sex and age discrimination which were also submitted out of time, it was just and equitable in all the circumstances to allow them to proceed. The Respondent appealed on the ground that the ET had erred in law in definitively deciding that the treatment complained of, up to and including the claimed constructive dismissal, all formed part of "conduct extending over a period", without having determined what factually occurred and whether any of it involved discriminatory treatment. The Claimant cross-appealed, asserting that the ET had proceeded on the basis that the only claim of harassment related to an alleged incident in 2011 and that it had erroneously failed to recognise that, in relation to various alleged incidents in 2017, the claim form had also asserted alternatively that these were acts of harassment.

The EAT held that the ET had erred in law because, at this Preliminary Hearing, it did not have any evidence before it on the continuing conduct issue, and it could not have made any finding of fact at all, relevant to that issue, nor any finding about whether any of that alleged conduct amounted to discrimination. Also, the cross-appeal would be allowed, on the basis that there was a claim of harassment in relation to the alleged treatment in January 2017 which remained live. Accordingly, a wide range of live issues relating to the alleged incidents in 2017 remained to be determined at the Full Merits Hearing.

Published: 14/11/2019 18:03

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