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; when extending time, the tribunal considers the length of delay and prejudice to parties.
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; unfair dismissal rights extend to expatriates with a 'sufficiently strong connection' to the UK.
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.
Wages; holiday pay; a gap of more than 3 months between underpayments breaks the 'series of deductions'.
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.
Wages; series of deductions; a gap of 3 months does *not* automatically break a series of unlawful deductions.
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; diplomatic missions cannot claim immunity for domestic employment disputes.