Win in EAT for Marianne Tutin in Race Discrimination Case with Limitation Issues
In Dr N Jones v The Secretary of State for Health and Social Care [2024] EAT 2, HHJ Tayler (sitting with wing members) dismissed an appeal against a liability judgment which had rejected complaints of direct race discrimination and victimisation, on the merits, and on the basis the discrimination complaint was out of time.
The Claimant, of African-Caribbean descent, applied for a role in Public Health England. He was interviewed with three other white candidates in March 2019. The Claimant’s application was unsuccessful (although he was ranked as first reserve) and one of the white candidates was chosen for the role in April 2019. The Claimant was not notified of the outcome of his application until July 2019, over three months after the interview. He requested details regarding the successful candidate, but this was not provided by Public Health England because the Claimant did not follow the correct process. The Claimant presented his claim to the ET in October 2019, nearly seven months after the appointment decision was made.
Having dismissed the direct race discrimination complaint on its merits, the ET concluded that it was not just and equitable to extend time in any event. The Claimant had been suspicious as to why his application had not succeeded in July 2019, and there was no good reason for delay. At the EAT, the Claimant argued that the ET should have considered the fact that he had not been notified of the successful candidate’s ethnicity until the preliminary hearing. The EAT held this was not a complaint the Claimant had raised before the ET and in any event, the fact that he did not know the ethnicity of the successful candidate had not prevented him from presenting his complaint when he did. There were no grounds to interfere with the very wide discretion afforded to ETs in considering a ‘just and equitable’ extension of time.
However, the EAT noted that (1) the case demonstrated challenges facing claimants when deciding whether to bring discrimination complaints since the repeal of the questionnaire procedure and (2) the Respondent had risked an inference of discrimination being drawn against it by withholding the ethnicity of the successful candidate in the pleadings. The case serves as a useful reminder that, in appropriate cases, information relating to potential comparators should be set out at an early stage of proceedings.
Marianne Tutin represented the Secretary of State for Health and Social Care.
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