Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Clarke Lady Dorrian	[2013] CSIH 32 XA99/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the appeal by CITY OF EDINBURGH COUNCIL, Respondents and Appellants; against KAMALJIT KAUR, Claimant and Respondent: _______

Act: Napier QC; Legal, Risk & Compliance Department of the City of Edinburgh Council

Alt: Party

23 April 2013

Introduction

[1] This is an appeal, under section 37(1) of the Employment Tribunals Act 1996, against an order of the Employment Appeal Tribunal dated 10 November 2011, reinstating claims of racial discrimination and victimisation by way of discrimination "extending over a period" of approximately five years, in terms of section 68(7)(b) of the Race Relations Act 1976, which had been "struck out" as time barred by an Employment Tribunal on 16 February 2011. The provisions of the 1976 Act are now superseded by the Equality Act 2010.

[2] The respondent, who is the claimant in the originating Tribunal proceedings ("the claimant"), describes herself as being of Indian and Asian ethnic origins. She has been employed by the appellants, who are the respondents in the Tribunal proceedings ("the respondents"), for approximately thirteen years as a teacher of English as an additional language ("EAL") working at Sciennes and other primary schools. According to the claimant, in February and March 2007, she had attempted to document an incident involving racist bullying of a pupil of Pakistani Muslim origins at Sciennes. She raised her concerns with the respondents about the manner in which the incident had been handled and more generally about the under-resourcing of her work at the school. On 30 May 2008, the claimant attended a departmental meeting of the respondents at which she gave a scheduled talk to a small number of teachers. On 4 June 2008, the respondents offered the claimant counselling following complaints made by members of staff about the meeting. The claimant maintained that she felt bullied and had not understood the nature of these complaints. Following a failed attempt to resolve matters informally, the claimant raised a formal grievance on 14 August 2008 in respect of the unsatisfactory handling of matters by AN, the head teacher employed by the respondents.

[3] On 13 November 2008, the claimant submitted a claim to the Employment Tribunal alleging victimisation by the respondents and two named employees, AN and DW (AN's line manager and a neighbourhood manager) on the grounds of race. The claimant alleges that AN's actions did not conform to the respondents' policy on fair treatment at work and constituted bullying and victimisation. She alleges that DW delayed in processing her formal grievance and that this constituted a further act of victimisation. The claim was founded on events that took place after 30 May 2008 but the claimant purports in the claim to have "reserved her right" to add details in respect of events that occurred prior to that date "as background, under the same head of claim (race discrimination)".

[4] The claimant submitted a second claim to the Employment Tribunal on 22 June 2010 founding on the same formal grievance of 14 August 2008. The second claim proceeds against the same parties as the first but adds fourteen other named employees of the respondents. It is said to be "a continuation of the [2008] claim" and includes sixty-one complaints of conduct summarised in a three page contents list and expanded upon over 57 pages of narrative, relative to conduct allegedly amounting to "continuing acts of direct discrimination" during the period August 2005 to 23 April 2010.

[5] The claimant's formal grievance was ultimately rejected by the respondents' Personnel Appeals Committee (PAC) on 23 April 2010. The PAC decision arose from a direct appeal by the claimant following decisions upon "stage 1" and "stage 2" grievance hearings dated 27 March and 4 November 2009 respectively, each of which were appealed on the basis that the decisions themselves had constituted acts of racial discrimination and/or victimisation by way of discrimination. The PAC decision is itself also challenged in these proceedings on the same basis and on the broader grounds of bias and unfairness.

[6] Some of the allegations made in the first claim are also covered in the second. That is not an issue in this appeal. The first claim has not been finally disposed of, as the Tribunal anticipated further procedure in the second claim including the possibility that it should be "combined with" the first claim (Judgment, para 73). The second claim alleges that there was "a 'glass ceiling' on career progression within the [respondents' EAL] service for ethnic minorities" which, "coupled with the bullying and hostile working environment" produced by the numerous specific acts complained of, comprised "a continuing act of direct discrimination...that had 'extended over a period of time'...". The claimant characterises the situation as a "continuing discriminatory state of affairs (a discriminatory regime)". Broadly, she complains of a series of decisions made or condoned by her line managers, failures to follow the respondents' equal opportunities and grievance procedures, bullying and hostile treatment, all throughout the period 2005 to 2010, together with more specific complaints of false allegations of misconduct made against her in bad faith, a failure properly to investigate her own complaints of victimisation and a lack of visibly ethnic minorities in senior management positions, all of which she says are "indicative of an institutionally racist working environment, which ha[d] existed throughout the whole period".

[7] At a Pre-Hearing Review on 20 January 2011, the Employment Tribunal (sitting as a single judge) heard submissions on the issue of time bar. The Employment Judge directed herself thus:

"42. First, I have to consider whether there is any reasonable basis for arguing that any or all of the allegations could potentially constitute an act or acts of any of the respondents extending over a period and in particular whether such an act would include the decision of the Personnel Appeals Committee, that being the only specific act that has taken place within the three month period before the claim form was submitted. If the answer to that is 'yes' then those complaints that potentially comprise the continuing act may be in time and shall proceed. If any of the allegations do not form part of such a continuing act, then I have to consider whether it would be just and equitable to allow any of those to proceed although out of time".

The Judge's resultant determination dated 16 February 2011 "struck out as out of time" the claimant's claims against 12 of the named individual respondents and, separately, allowed the claimant's allegations in respect of the PAC decision dated 23 April 2010 to proceed as "in time" together with the related allegations of discrimination in the handling of the claimant's grievance. The Judge held that it was "just and equitable for time to be extended" in order that the related allegations be considered. All remaining allegations, including those against the respondents, were "out of time and [were] struck out".

[8] The Judge considered that the claimant's allegations fell into seven categories, being those relating to: (1) the claimant's treatment and relationships with staff at Sciennes during the period 2005 to 2008; (2) the way staff at Sciennes participated in the claimant's grievance procedure in the period to November 2009; (3) the way in which the claimant's personal development review and career progression were dealt with in the period to February 2009; (4) the lodging of a grievance raised by an employee of the respondents against the claimant in the period to June 2009; (5) the way the claimant's grievance was dealt with by her managers in the period to November 2009; (6) the failures to respond to a statutory questionnaire in terms of section 65 of the Race Relations Act 1976 and the Race Relations (Questions and Replies) Order 1977 in September 2009; and (7) the procedure and decision of the PAC in April 2010. With regard to the "act of institutionalised racism or the existence of a glass ceiling for ethnic minorities" (ibid, para 44), the Judge directed herself to consider whether the acts categorised in (1) to (6) could potentially be linked to the acts in category (7) so that the continuing act would be brought within the statutory time limit. The Judge observed that it was "relevant but not conclusive whether the same individuals or different individuals were involved in those incidents. An employer may be responsible for a state of affairs that involves a number of different individuals" (ibid, para 46; Hendricks v Comr of Police of the Metropolis [2003] ICR 530, Mummery LJ at paras 48 - 52). The test was whether the claimant had set out a prima facie case (Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548, Hooper LJ at para 10, applying Hendricks v Comr of Police of the Metropolis (supra)) or a "reasonably arguable basis" (Ma v Merck Sharp and Dohme [2008] EWCA Civ 1426, Mummery LJ at para 17) for the contention that the multiple allegations were capable of forming parts of a single continuing act. It was not enough for the claimant merely to assert that there was such a link (ibid, para 48).

[9] The Judge observed that, in relation to the claims directed towards the respondents, "the only thread potentially linking the allegations" was the claimant's statement that the respondents are institutionally racist and have a "glass ceiling" for ethnic minorities (ibid, para 50). However, the most recent specific allegation was made in February 2009 and was therefore out of time. Notwithstanding the possibility that the allegations might be grouped together to comprise a number of discrete "continuing acts" (ibid, para 51), the Judge concluded that she could not see "any thread" to support the contention that there was a continuing state of affairs linking all of the allegations together. She observed that there was no suggestion that the conduct of the individual respondents within the claimant's department at one particular school was indicative of institutionalised racism (ibid, para 52). The Judge exercised her discretion to allow the allegations in respect of the handling of the claimant's grievance (as at (5) above) from November 2008 to proceed out of time on the basis that it was not unreasonable for the claimant to have awaited the outcome of her final appeal before taking further action. The decision of the PAC did not form part of any continuing act, but the claimant's allegations in respect of the decision (as at (7) above) were made timeously and allowed to proceed.

[10] The Tribunal's decision was appealed successfully to the Employment Appeal Tribunal (Lady Smith sitting as a single judge). It reinstated all of the claims in terms of its Judgment of 10 November 2011. The EAT considered that to characterise the issue as one of time bar was "perhaps slightly misleading since it seems that, in reality, the issue was whether any part of the [c]laimant's claim should be struck out" (Judgment, para 1). The EAT recognised that a distinction was to be drawn between the test for striking out, on the basis of "no reasonable prospects of success", and the "jurisdictional test involved in the consideration of time bar" (ibid, para 16) but considered that, in either case, it was important not to prevent discrimination cases from proceeding to a hearing of evidence other than in the most obvious or exceptional cases (Anyanwu v South Bank Student Union and Others [2001] IRLR 305; Ezsias v North Glamorgan NHS Trust [2007] ICR 1126), including those in which time bar arose in a context where evidence had not been led and the facts remained in dispute (ibid, para 16). In essence, the EAT held that the Tribunal had fallen into error because:

"[The Tribunal] tested the [c]laimant's pleading by looking only at the allegations of the specifics and asking whether they could point to there being a continuing act, in particular, whether they could point to there being institutional racism or the operation of a glass ceiling. What [the Tribunal] required, however, to do was take account of the fact that there was an overarching allegation...and that it appears to be to the effect that all the acts complained of were tainted or driven by the institutional racism referred to there" (ibid, para 23).

[11] The EAT held that the claimant had set out a prima facie case that there had been a continuing discriminatory act extending over the whole period and thus the claims "struck out" by the Tribunal were not time barred. Accordingly, the claimant should have been permitted to proceed to an evidential hearing on all matters, including time bar.

Submissions

Respondents

[12] The respondents adopted as the basis of this appeal the analysis of the procedural judge, in his Note on the respondents' application for leave to appeal, dated 1 June 2011 as follows:

"In this case, there is a fundamental disagreement on a matter of law between the ET, sitting as a single judge, and the EAT, also sitting as a quorum of one. The ET considered that the appropriate test was that set out in Hendricks [(supra)]; notably whether there was any reasonable basis for arguing that any or all of the allegations made constituted acts extending over a period of time and, in particular, until the time of the PAC decision. The disagreement, which is one of law, is that the EAT considered that that was in itself an inadequate test to apply and that those specific to 'striking out' discrimination cases ought to have been borne in mind (ibid, para 11)".

[13] The EAT had proceeded on the basis of a misapprehension that the respondents were seeking to "strike out" the claimant's case on the basis of a time bar and were therefore bound to show that the claimant's case had no reasonable prospects of success. Crucially, there had been no "strike out" application before the Employment Judge. The authorities relied upon by the EAT (Anyanwu v South Bank Student Union (supra) and Ezsias v North Glamorgan NHS Trust (supra)) were "striking out" cases and therefore distinguishable. The respondents' position had been to seek dismissal on the basis of time bar under exception of the allegation concerning the PAC decision.

[14] The PAC decision had been the only specific act within the primary statutory time limit. No evidence had been presented to the Employment Judge at the Pre-Hearing Review and, given the nature of the Tribunal's jurisdiction, the Judge had been entitled to determine the time bar issue as a preliminary matter on the basis of the materials placed before it, notably the pleadings and submissions (Lindsay v Ironsides [1994] ICR 384, Mummery J at 392; Accurist Watches v Wadher [2009] UKEAT/0102/09, 23 March 2009, Underhill J at para 16). The Judge had to be satisfied that the Tribunal had jurisdiction and it was for the claimant to demonstrate that by setting out a prima facie case of a continuing act (Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548) which included the decision of the PAC. The claimant had to do more than make a bare assertion; she had to make relevant and substantial averments to link the relevant acts. The claimant's allegations of there being a glass ceiling and institutionalised racism were not made against the respondents as a whole. They were made against the EAL service and the division within which it operated. The PAC decision could not be linked to the allegation of discrimination within a particular division. The nature of the PAC had been explained in submissions to the Judge. All members were councillors, none of whom had been involved in the claimant's case.

[15] The courts had developed the prima facie test to determine whether or not a time bar point could be sustained at a preliminary stage in order to balance the rights of employees to bring claims of continuing discrimination against the problems facing employers meeting claims which might stretch back over many years (Hendricks v Comr of Police of the Metropolis [2003] ICR 530, Mummery LJ at paras 29 and 47). The Judge had directed herself correctly on the test and the EAT had been correct to endorse it. The Judge had not made findings of fact, but tested whether the claimant had made out a prima facie case. She had adopted the proper approach in categorising the claimant's allegations for this purpose (Lyfar v Brighton and Sussex University Hospitals Trust (supra), Hooper LJ at para 8).

Claimant

[16] The claimant adopted the reasoning of the EAT and argued that it was only in the most obviously futile cases that a discrimination claim should be determined on a time bar or "continuing act" basis without considering all the evidence. Racial discrimination claims were highly fact-sensitive (Jiad v Byford & Ors [2003] IRLR 232, May LJ at para 9) and often depended upon inferences being drawn from primary facts (Anya v University of Oxford [2001] IRLR 377, Sedley LJ at para 23), particularly in cases of continuing discriminatory practice or policy (Owusu v London Fire and Civil Defence Authority [1995] IRLR 574; Cast v Croydon College [1998] IRLR 318). The Judge had erred in confusing the concepts of time bar, relative to the Tribunal's jurisdiction, and "striking out" on the merits (Meek v Birmingham District Council [1987] IRLR 250). She had accepted that there was material before her from which it might be ascertained that there was a continuing act. Having done so, the Judge had gone too far in reaching a decision on the merits. It was sufficient to constitute a reasonably arguable basis of claim that the Judge had found there to be a potential thread of unlawful discrimination (Judgment, paras 44 and 51). Whether or not a continuing act had been made out, such as the existence of a "glass ceiling" or discriminatory "mindset" (Moxam v Visible Changes & Anor (2011 UKEAT/0267/11/MAA) could only be established after the Tribunal had considered all the evidence (Rihal v London Borough of Ealing [2004] IRLR 642).

[17] If the Judge had been correct to address the case in terms of "striking out", the test of whether the claim had no reasonable prospects of success was a high one (Balls v Downham Market High School & College [2011] IRLR 217). It could be equated with the requirement to demonstrate a reasonably arguable basis of claim in order to prevent dismissal on the basis of time bar (Ma v Merck Sharp and Dohme [2008] EWCA Civ 1426, Mummery LJ at para 17). In either case, evidence should be heard unless the case was obviously futile. The claimant should have been allowed to proceed to a hearing of evidence even where the prima facie case was weak (Jiad v Byford & Ors (supra), May LJ at para 21; Community Law Clinic Solicitors & Ors v Methuen [2011] EWCA Civ 1783, Moses LJ at para 6). Provided the claim had some substance, it should be heard (Timbo v Greenwich Council for Racial Equality (2012 UKEAT/0160/12, Judge Richardson at para 50). The existence of a "glass ceiling" and the allegation that the respondents were "institutionally racist" satisfied the test that there was some reasonable prospect of success. In any event, the case should not be "struck out" where the central facts were in dispute (Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, Maurice Kay LJ at para 29).

Decision

[18] The essence of the respondents' position was that the Tribunal had no jurisdiction to consider any allegedly discriminatory acts which allegedly took place prior to 23 March 2010, being a date three months prior to the submission of the claimant's second claim to the Tribunal on 22 June 2010, and therefore outwith the primary statutory time limit for claims in terms of sections 68(1)(a) and 68(7)(b) of the Race Relations Act 1976 then in force. Employment Tribunals do not have jurisdiction to deal with claims which are thus time barred (sections 54(1) and 68(1) of the 1976 Act; see eg Radakovits v Abbey National plc [2010] IRLR 307, Elias LJ at para 16). In this case, time bar was raised by the respondents as a preliminary issue to be decided at a Pre-Hearing Review. The Employment Judge's task at that stage was simply to ascertain the nature of the complaint from the terms of the claimant's form ET1; the relevant question being "what the ET1 meant to the reasonable reader" (Charles v Tesco Stores Ltd [2012] EWCA Civ 1663, Mummery LJ at para 20). Where it is clear, on a fair and reasonable reading of the ET1 as a whole, that a claimant is alleging continuing discrimination and that the final specific allegation in that context is at a time within the primary time limit, that may be sufficient, to determine that a claimant's case is potentially timeous (ibid, paras 18, 22 and 24).

[19] It is not enough for a claimant to make a bare assertion that specific acts are part of a continuing act (Ma v Merck Sharp & Dohme (supra), Mummery LJ at para 17) albeit, equally, no particular terminology in respect of acts "extending over a period" need be adopted (Khetab v AGA Medical [2010] UKEAT/0313/10, unreported, 21 October 2010). The claimant has to set out a "reasonably arguable basis" for that contention (Ma v Merck Sharp & Dohme (supra), ibid). However, this was not a "striking out" application under Rule 18.7(b) - (f) (Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004) in terms of which the overall prospects of success would be relevant. Rather, it was a preliminary issue raising time bar under Rule 18.7(a). The Employment Judge, therefore, need only have concerned herself with whether the claimant had set out a prima facie case that the allegations were capable of forming part of a continuing act extending over a period ending with the PAC decision (Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA (Civ) 1548, Hooper LJ at para 10, applying Hendricks v Comr of Police of the Metropolis [2003] ICR 530, Mummery LJ at para 48 et seq). Proof of a continuing discriminatory act is notoriously fact-sensitive. Where the essential facts are in dispute, it will generally be necessary to hear evidence (Rodrigues v Co-operative Group, UKEATS/0022/12/BI, unreported, 17 July 2012, Lady Smith at para 52; Lyfar v Brighton and Sussex University Hospitals Trust (supra), Hooper LJ at paras 11 - 13, citing Arthur v London Eastern Railway Limited (trading as One Standsted Express) [2006] EWCA Civ 1358) notwithstanding that the general practice of Employment Tribunals is to "eschew evidential formalities" (Accurist Watches Ltd v Wadher [2009] UKEAT/0102/09, unreported 23 March 2009), Underhill J at para 16).

[20] A Tribunal may be entitled to find that discrimination has been established on the basis of inference alone (Kells v Pilkington plc [2002] IRLR 693, Lindsay J at para 22). As the EAT observed in this case (para 17):

"the guidance...is really very strong and such as to urge Employment Tribunals to exercise great caution before refusing to allow a discrimination case, or any part of it, to go forward to an evidential hearing. Discrimination cases inevitably involve consideration being given to the drawing of inferences and that is a task which is rendered quite different when done on the basis of having heard and seen three dimensional human beings giving evidence, as opposed to restricting consideration to the two dimensional hard edges of the printed word" (ibid, para 17).

Had the PAC decision not come within the primary statutory time limit, the claimant would have been bound to fail. It would therefore not have been necessary for the Tribunal to consider the subtleties prevalent in discrimination cases. However, where, as here, the PAC decision does fall within the time limit, the issue centres not on the dates of the other discriminatory acts but on whether those acts are linked to one another and to the PAC decision in the sense that they constitute:

"'an act extending over a period'...as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed" (Hendricks v Comr of Police of the Metropolis (supra), Mummery LJ at para 52).

[21] It is sufficient that the claimant has asserted the nature of the overarching act of the respondents and supported that assertion with adequate specification of the acts of the individual employees that are said to form the basis upon which a continuing act may be established. The respondents have been given fair notice of the substance of the claimant's case (Khetab v AGA Medical (supra); Ma v Merck Sharp & Dohme (supra), Mummery LJ at para 26). The claimant did not need to go any further than that in order to satisfy the requirement to set out a prima facie case. However, the Tribunal is under a continuing obligation to satisfy itself that a claim falls within its jurisdiction. Thus, there is nothing to prevent the time bar issue in relation to a particular act being determined after a full hearing (Rogers v Bodfari (Transport) [1973] IRLR 172, approved by the Court of Appeal in Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, [1973] IRLR 379; Malcolm v Dundee City Council [2012] CSIH 13). Indeed, there is a particular advantage in considering time bar after such a hearing especially where it appears that little by way of time or expense will be saved in attempting to segregate the issues at the outset (Tilling v Whiteman [1980] AC 1). Here, evidence of the claimant's specific allegations could be adduced as evidence of continuing discrimination, albeit some may be deemed time barred (Eke v Commissioners of Customs and Excise [1981] IRLR 334).

[22] Notwithstanding the looseness of language in the Tribunal's determination, which refers to claims being "struck out" on the grounds of time bar, the Employment Judge was alive to the distinction between time bar raised as a preliminary issue under Rule 18.7(a) and "striking out" on the grounds that the claim had no reasonable prospects of success (Rule 18.7(b)). The court can understand why the EAT considered (para 1) that "in reality, the issue was whether any part of the Claimant's claim should be struck out". After all, the effect of the Tribunal's decision was to "strike out" on the basis that a claim had no reasonable prospects of success because it was time barred (Kerr v Ernst and Young Services Ltd 2011 ICR (D) 13, UKEAT/567/10). However, it is erroneous to present what is truly a jurisdictional point as synonymous with a summary disposal on the merits.

[23] Albeit that the language of "strike out" was used, the court is satisfied that the Employment Judge was not exercising that power. The Judge directed herself that she should be slow to "strike out" both claims of discrimination (para 41) and claims on the grounds of time bar without hearing evidence (para 48). She identified the correct test in saying (at para 48):

"I am not making ... any positive determination that there is a continuing act, merely whether, taken at their highest and assuming that each allegation is proved, the claimant's allegations set out a prima facie case. It is not enough for the claimant merely to assert that there is a link. There must be some reasonably arguable basis for that assertion."

[24] The Judge went on (at para 51) to say, that there was a "thread potentially linking the allegations", notably that the respondents were institutionally racist and had a "glass ceiling" for ethnic minorities. However, she then founded upon the last specific allegation being in February 2009 and thus being out of time. The Judge noted that the claimant had maintained that there was an ongoing situation or continuing state of affairs and that the allegations were linked together. She nevertheless determined (para 52) that the allegations of discriminatory treatment at Sciennes and in the processing of the claimant's grievance could not be said to be indicative of institutional racism. She held that the claimant did not offer to prove otherwise.

[25] Such an approach disregards the essential stated import of the claimant's allegation of continuing discrimination and imposes upon the claimant's pleadings an overly strict test of relevancy. It is far from obvious what material the claimant could be expected to found upon, in making an overarching allegation of institutionalised racism against her employer, other than the actings of those individual employees, with whom she had dealings in her working environment.

[26] The Judge's criticisms also fail to take adequate account of the provisions of section 32(1) of the 1976 Act which state:

"anything done by a person in the course of his employment shall be treated...as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval".

As was observed in Rihal v London Borough of Ealing [2004] 1 IRLR 642 (Sedley LJ at para 50):

"This section provides a carrot and stick. The stick is that employers will ordinarily be liable for the discriminatory acts of their staff. The carrot is that they will escape vicarious liability if they can show that they had done all they reasonably could to prevent their staff from discriminating on the grounds of race. The plain purpose is to encourage employers to prevent racial discrimination by the use of procedures, training and monitoring. But the section also has a reverse effect. An employer which is unable to invoke s.32(3) [that the employer took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description] - in other words, which has done little or nothing to prevent or halt possible racial discrimination on the part of its staff - faces an enhanced risk that their discriminatory acts will be found to have contained a racial element."

That being so, the basis upon which the Employment Judge could justifiably disregard allegations against individual employees in assessing the existence of a prima facie continuing act by the employer is obscure.

[27] In all the circumstances, given the nature of the allegations, the court considers that the Employment Judge could not properly have concluded that particular aspects of the claimant's case were time barred without hearing evidence to establish the facts alleged to constitute the continuing act. It was an error of law to do so. Accordingly, the appeal is refused and the decision of the EAT is upheld insofar as it reinstates the claims previously "struck out", or more accurately dismissed, by the Tribunal and finds that the claimant has set out a prima facie case capable of establishing a continuing act or acts of discrimination extending over the whole period. As the EAT put it (at paras 24 and 26):

"Whether [the claimant] can establish her averments as fact and persuade a tribunal to draw discriminatory inferences is, of course, another matter, and is not to be taken as having been in [any] sense pre-determined by this decision... [The] claimant should be permitted to proceed to an evidential hearing where she can have the opportunity to seek to persuade a Tribunal that she can overcome all these hurdles, time bar included, in respect of her claim".

[28] For the avoidance of doubt, the court emphasises that time bar remains a live issue for consideration by the Tribunal following any hearing of evidence. The court also records that it was not addressed, as counsel did not have instructions, on behalf of the various employees named as individual respondents. Notwithstanding the absence of any submissions on behalf of the individual respondents, it remains a matter for the Tribunal to be satisfied that it has jurisdiction to determine the merits of the allegations directed against individual respondents, whether or not the general time bar argument presented on behalf of the respondents is upheld.