The claimant alleged direct gender discrimination, indirect gender discrimination and victimisation contrary to the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’), the background being an unsuccessful application for a more senior position.

In identifying that there were issues regarding proper adherence to time limits, the tribunal was required to decide whether matters raised referring to promotion competition were ‘one-off acts’ from which time separately began to run or, whether there had been an act extending over a period for the purposes of the legislation; ‘a continuing state of affairs.’

The importance of this distinction is, clear since a finding that the claim is based on a one off incident would trigger the three month time limit for submissions of claims. Since this was a pre-hearing review it was held that where a claimant is alleging that a complaint is part of ‘an act extending over a period’, they need only establish a prima facie case. The tribunal comprehensively considered the case-law in this area, and despite not making a ruling on whether a continuing state of affairs existed, made it clear that there was not a very high threshold to meet at this stage. The authority of Aziz v FDA [2010] EWCA Civ 308 which states that a claimant must have a ‘reasonably arguable basis’ was effectively equated with ‘prima facie’ and the tribunal did not feel the need to complicate the definition of the term. The application to strike out the claim was rejected.

Practical Lessons

Essentially, the task of the tribunal at this preliminary stage is simply to make a decision whether it has jurisdiction to consider the allegations presented. The tribunal stressed the importance of its role in looking at ‘what the ET1 meant to the reasonable reader’ in trying to ascertain the actual nature of the complaint. This case, after reciting the relevant authorities extensively, decided that this threshold is not a very high one and the striking out a claim would have been a punitive measure.