Bahous v Pizza Express Restaurant Ltd (Race Discrimination : Continuing act), United Kingdom Employment Appeal Tribunal, Judgment, Law, casemine.com

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Attorney(S)

MR CHANGEZ KHAN (of Counsel) Instructed by: Rose & Rose Solicitors The Riverside Centre 40 High Street Kingston upon Thames KT1 1HL
MR WILLIAM MACKENZIE (Representative) Croner Consulting (Litigation Department) Croner House Wheatfield Way Hinckley LE10 1YG

Judges

MRS J M MATTHIAS
JUDGE PETER CLARK

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Bahous v. Pizza Express Restaurant Ltd (Race Discrimination : Continuing act)

Smart Summary

Factual and Procedural Background

This case originated in the Ashford Employment Tribunal involving a Claimant who was employed as a waiter by Company A at their branch in The City from March 2000 until his resignation in January 2010. In July 2009, the Claimant was asked by Company A to produce his passport under threat of suspension, a request not made to other employees except one African-origin colleague. The Claimant did not produce the passport and was suspended from 15 July until 6 August 2009, after which he was paid for missed shifts. The Claimant raised a grievance regarding this treatment, culminating in a meeting with the newly appointed Operations Manager on 15 December 2009. The Claimant’s solicitors wrote to Company A on 17 December requesting an apology, compensation, and legal costs. Company A apologized for losing the Claimant’s personnel file but denied discriminatory intent. The Claimant resigned effective 13 January 2010 after securing alternative employment and continuing his plumbing business.

The Claimant lodged claims on 9 April 2010 alleging (1) constructive unfair dismissal and (2) direct racial discrimination. The Employment Tribunal found the racial discrimination claim established but dismissed the unfair dismissal claim, concluding the resignation was not due to the employer’s breach but a better job opportunity. The racial discrimination claim was dismissed on limitation grounds as it was deemed time-barred, with the Tribunal holding that the discriminatory act continued until 24 December 2009, but the claim was lodged outside the three-month limit from that date. Both parties appealed the Tribunal’s findings on limitation and extension of time.

Legal Issues Presented

Whether the discriminatory acts by Company A constituted a continuing act extending the limitation period to 24 December 2009, or whether the limitation period ran from 6 August 2009 when the suspension was lifted.
Whether the Employment Tribunal erred in refusing to grant a just and equitable extension of time under section 68(6) of the Race Relations Act 1976 to allow the Claimant’s racial discrimination claim to proceed despite being lodged late.

Arguments of the Parties

Appellant's Arguments

The Claimant contended that the discriminatory act was continuing and extended until the grievance determination on 24 December 2009, thus triggering the limitation period from that date.
The Claimant argued that the Tribunal failed to properly consider the balance of prejudice between the parties and the fact that the racial discrimination claim was established on its merits when deciding whether to extend time.
The Claimant submitted that delay caused by legal advisors should not be held against him in the extension of time analysis.

Respondent's Arguments

Company A contended that the limitation period ran from 6 August 2009 when the suspension ended, and the discriminatory act was not continuing.
They argued that the Tribunal correctly exercised discretion in refusing to extend time and that the merits of the claim should not be a separate factor in that exercise.
The Respondent accepted no prejudice resulted from the delay but maintained the Tribunal implicitly considered this factor.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96	Concept of continuing act of discrimination.	The court adopted the principle that discriminatory acts can be continuing, applying it to the grievance handling as part of the ongoing discrimination.
Yeboah v Crofton [2002] IRLR 634	High threshold for perversity in appeals.	The court found no perversity in the Tribunal’s decision on continuing act and dismissed the Respondent’s cross-appeal.
London Borough of Southwark v Afolabi [2003] IRLR 220	Factors for just and equitable extension of time under s.68(6) RRA.	The court used this as guidance for assessing the extension of time, emphasizing flexibility and relevance of factors.
Governing Body of St Albans Girls School v Neary [2010] IRLR 124	Endorsement of the approach to just and equitable extension.	The court affirmed the approach to consider all relevant factors without mechanical application of statutory lists.
Baynton v South West Trains Ltd [2005] ICR 1730	Extension of time and consideration of merits in prejudice balancing.	The court held that failing to consider merits as part of prejudice was an error; this supported allowing the Claimant’s appeal.
Chohan v Derby Law Centre [2004] IRLR 685	Responsibility for delay caused by legal representatives.	The court held it was an error to penalize a claimant for delay caused by solicitors, supporting the Claimant’s appeal.
Buckland v Bournemouth University Higher Education Corporation [2010] IRLR 445	Exercise of appellate powers to decide issues without remitting.	The court exercised its discretion to decide the extension of time issue itself rather than remitting for rehearing.
Robertson v Bexley Community Centre [2003] IRLR 434	Strict enforcement of time limits in employment cases.	The court acknowledged strict time limits but found extension justified in this case due to circumstances.

Court's Reasoning and Analysis

The court first addressed the continuing act issue, interpreting the Tribunal’s reasons as finding that the Respondent’s handling of the grievance was part of an ongoing discriminatory act, consistent with established case law. The court rejected the Respondent’s appeal, finding no perversity in the Tribunal’s approach.

Regarding the refusal to extend time, the court applied the principles from relevant case law emphasizing a flexible, holistic approach to just and equitable discretion. The Tribunal had failed to consider two significant factors: the balance of prejudice between parties, which favored the Respondent, and that the Claimant’s racial discrimination claim was established on its merits. The court found that the Tribunal erred in attributing the delay to the Claimant rather than his legal advisors, contrary to precedent.

Given the short delay and absence of prejudice to the Respondent, the court held that the Tribunal’s refusal to extend time was an error of law. Exercising its appellate powers, the court extended time and remitted the case to a fresh Employment Tribunal for determination of remedy.

Holding and Implications

The court ALLOWED the Claimant’s appeal on the issue of extension of time and DISMISSED the Respondent’s cross-appeal on the continuing act issue.

As a result, the racial discrimination claim, previously dismissed as time-barred, will proceed to remedy determination before a fresh Employment Tribunal. This decision reinstates the Claimant’s access to a remedy for established unlawful discrimination and clarifies the application of the continuing act doctrine and the just and equitable discretion under the Race Relations Act 1976. No new precedent was established beyond the correct application of existing principles to the facts.