Goncalves v Voisin Department Store Limited and others: [2023] TRE 191

By her claim form, the Claimant alleged disability discrimination, constructive unfair dismissal, notice pay and holiday pay. The claims of constructive unfair dismissal, notice pay and holiday pay were filed in time. The sole respondent to these claims was her former employer, Voisin Department Store Limited.

Coupled with this, the claimant issued, claims of direct discrimination against, Voisin Department Store Limited and ten other respondents. One of the respondents was HR Now Limited (the employer’s outsourced HR Consultant) and five of the respondents were employees of HR Now Limited. The discrimination claims, to quote the Tribunal “are more complicated as they are made against [her employer] and 10 named individuals and extend over a period starting on 25 November 2022 and ending with the alleged dismissal on 31 August 2023”.

The key question the Tribunal had to determine is whether the discrimination claims were lodged in time.

The Tribunal reminded itself of the legal position. Article 37(2)(b)(i) of the Discrimination (Jersey) Law 2013 (the “Discrimination Law”) contains an eight-week time limit for discrimination claims. Article 37(3) of the Discrimination Law states: “any act prohibited by [the Discrimination Law] which extends over a period is to be treated as done at the end of the period”. The Claim Form was filed on 24 October 2023 which meant that anything that occurred before 30 August 2023 would be out of time, unless it was a ‘continuing act’ of discrimination.

There is a ‘continuing act’ of discrimination if there is an ongoing situation or continuing state of affairs which amounts to discrimination. In determining whether conduct extended over a period is in time, at least one of the acts of alleged discrimination must be within the eight-week time limit.  As such if all the acts of alleged discrimination against one or more of the 11 Respondents occurred prior to 30 August 2023 the claims against that Respondent would be time-barred.

The Tribunal went on to analyse the alleged acts of discrimination by each of the Respondents and concluded that based upon the Claimant’s claim form only claims against permitted only two allegations of discrimination to continue, namely those alleged to have been made by her former employer and the alleged act that has made by the former employer’s agent.

Comment

This Tribunal case emphasises the importance when defending tribunal claims to analyse whether the alleged acts of discrimination fell within the eight week period.

KEY WORDS: Discrimination; Strike Out; Time-limits

An interesting judgment analysing the time limits contained in the Discrimination (Jersey) Law 2013. This case also re-emphasises that the actions of an employer’s agent can result in the employer being held vicariously liable for such conduct.