In the case of Lyfar v Brighton & Sussex Universities Hospital NHS Trust two particular issues had to be examined.
The first related to the approach to be taken where a claims are made about numerous acts over an extended period of time. In this case Dr Lyfar made 17 complaints of race discrimination in her Employment Tribunal claim. She contended that these complaints were a continuing act over an extended period of time as allowed for under Section 68(7)B of the Race Relations Act 1976. At a Pre-Hearing Review the Employment Tribunal dismissed 12 of the complaints as being out of time on the basis that they did no constitute a continuing act. At a further hearing four of the remaining five grounds were dismissed due to a failure to follow the statutory grievance procedure.
The Employment Tribunal then considered the second issue, namely whether or not it was just and equitable to extend the time limit for filing an Employment Tribunal claim. It was decided on the facts that it was not.
Both the Employment Appeal Tribunal and the Court of Appeal held that the correct approach had been taken by the Employment Tribunal on each point. Whether there was an ongoing situation or state of affairs was something for a claimant to prove. It may well be that a claimant’s failure to give clear direct evidence will undermine the proving of such a burden. With regard to the “just and equitable” discretion, again a claimant is required to give a clear explanation for any delay.