logo-education
0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Forgotten your password?

Be wary of events post-dating the presentation of an Employment Tribunal claim

16 August 2021

In the recent case of Sakyi-Opare v Albert Kennedy Trust, the Employment Appeal Tribunal (EAT) held that an Employment Tribunal erred in deciding a claim was out of time because it did not first consider the claimant’s application to amend her claim, which included events that post-dated her claim.

The claimant was a social work student at Brunel University. As part of her course, she had a placement with the respondent, an LGBTQ+ youth homelessness charity. On 24 May 2018, the respondent notified the claimant that her placement could not continue because her supervisor had resigned and no one else could be found.

On 5 October 2018, the claimant filed an Employment Tribunal claim for discrimination and harassment on the grounds of religion. The claimant claimed that the respondent had complained to her university about negative comments she had allegedly made which portrayed her as prejudiced against LGBTQ+ people and called into question her suitability as a professional social worker. The claimant disputed the allegations she says were made against her and claimed that they were made because of her religion. The claimant claimed the allegations resulted in professional suitability proceedings being commenced against her by the university.

The claimant was invited to a meeting under the proceedings by her university on 22 January 2019 to discuss the concerns raised by the respondent. Not long after, at an Employment Tribunal Preliminary Hearing on 1 March 2019, the purpose of which was to consider whether the claimant’s claim had been presented in time/time should be extended to hear it, the claimant made an application to amend her claim to include the events of the meeting of 22 January 2019.

Taking the last act complained of in the claimant’s claim form, which was on 24 May 2018, the claim had been presented well out of time. The claimant argued that the university’s professional suitability proceedings, which were ongoing, had been triggered by the respondent’s allegations against her and so the claim was in time because there was a “continuing act”. In the alternative, she argued that it was just and equitable to extend time.

The Employment Tribunal held that the claimant’s claim was out of time and it was not just and equitable to extend time. The claimant appealed to the EAT. The EAT ruled that the Employment Tribunal had been wrong not to consider the claimant’s application to amend first. The EAT determined that there is no reason why a claimant cannot amend their claim to include a cause of action that occurs after the presentation of a claim and only after determination of that application should the Tribunal consider time limit issues.

The case is a stark reminder to employers that events which post-date a claim may very well end up being included in the claim and may mean that a claim, which on first glance appears out of time, is actually in time. As with all matters, when events pan out, they are not always as simple as they first seem.

Related opinions

A level results: what this means for schools and higher education?

This year’s A Level results have been a resounding success and demonstrate the commitment and resilience of students, schools and school staff during these unprecedented times. However, there will inevitably be some students who are disappointed with the teacher assessed grade.

View blog

Home Office Central Registry for modern slavery statement goes live - first universities publish statements

The Home Office recently launched a central registry for modern slavery statements. A growing number of educational organisations, including a number of universities, have published statements on the registry.

View blog

Allegations of abuse in schools, colleges and universities

The website “Everyone’s Invited” is a movement which is “committed to eradicating rape culture” and describes “rape culture” as “all the ways that different forms of aggressive and violent sexual behaviour are normalised, encouraged and even admired by society”. Find out more.

View blog

The lateral flow testing of university students

Guidance for students returning to, and starting higher education, in spring term 2021 requires universities to set a clear expectation that all students should access Covid-19 testing on their return to university.

View blog

Mailing list sign up

Select which mailings you would like to receive from us.

Sign up