• In November the Employment Appeal Tribunal (EAT) published its decision in the case of Caterham School Limited v Mrs K Rose that a tribunal should hear evidence when considering whether discriminatory acts extend over a period of time.

    The matter concerned an appeal against the Employment Tribunal’s (ET) judgment at a preliminary hearing allowing Mrs Rose’s direct discrimination claims to proceed, even though they were submitted out of time.

    What this means

    The case is a timely reminder to schools and the education sector generally of the increase in complex claims covering a number of different heads of claim, often based on broadly the same facts. Dissecting and responding to such claims in the most effective manner, to avoid greater risk or heightened costs, often requires specialist knowledge and an eye for detail.

    Where employment tribunal claims involving acts of discrimination are brought out of time, as in this case, tribunals have tended to err on the side of caution and allow such claims on the basis that it is ‘just and equitable’ to do so.

    However, this decision supports that such decisions should not be reached without having heard evidence from the parties involved and, only then should a decision be reached. In reality, this means that your staff may be required to give evidence as to events that may have occurred some time ago.  It will be important therefore to encourage staff to keep a written record of events that may lead to claims and make them aware that they may need to rely on such records if they are ever required to give evidence.


    Mrs Rose was employed by Caterham School until she resigned. Following this, she 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 school appealed this decision 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. Mrs Rose 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.

    Decision of the EAT

    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 which will be heard by the Employment Tribunal.

    This content is correct at time of publication

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