Waithaka v Barclays Execution Services Ltd [2026] EAT 105

In brief

The Employment Appeal Tribunal allowed a former employee's appeal against an employment tribunal's decision to strike out, as having no reasonable prospect of success, his case that earlier complaints of race discrimination, victimisation and harassment formed conduct extending over a period with his later complaints about the handling of his grievance, which would have brought them all in time under section 123(3)(a) of the Equality Act 2010 [1], [12], [23], [35]. The tribunal had wrongly counted against him the absence of any alleged racial motivation or overtly discriminatory act, neither of which is a necessary element of a race discrimination claim [32], and its points about different managers, decisions and dates were reasons why he needed the continuing-conduct provision, not reasons why it might not apply [33]. Taken at its highest, his case rested on an undisputed history of complaints from 2020, a dispute about the reason why that a full hearing might inform, and internal reports from 2018-2019 and 2020 that had noted prejudice towards black employees [27], [34]. The EAT accepted that the case might fail and, on the reports alone, might be a weak case, but held that "the conclusion that his case had no reasonable prospect of success was not one reasonably available to the Tribunal" [34]-[35]. Subject to any further submissions on disposal, it proposed to set aside the strike-out and remit the whole claim to an employment tribunal to be decided on its merits [47]. The ground based on the tribunal's 15-month delay in giving its decisions failed, because delay alone was not a serious procedural error [13]-[20], and the appeal against the refusal to extend time was academic; the EAT said it would have dismissed it [36], [41], [46].

Key provisions

• para-24 — Hendricks is the key authority on conduct extending over a period : Per [24], the key authority on the meaning of conduct extending over a period in section 123(3)(a) of the Equality Act 2010 is Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530, in which Mummery LJ gave the leading judgment. The EAT records that Mummery LJ "emphasised that whether there was conduct extending over a period is a matter for general factual evaluation" and quotes Hendricks at [51]-[52] in full [24]. Per [11], section 123(3)(a) provides that conduct extending over a period is to be treated as done at the end of the period.
• para-31 — Strike-out: take the case at its highest, with special caution where the reason why is disputed : Per [31], the tribunal was right to take the claimant's case at its highest, meaning "accepting for the purposes of its decision his realistic best case on the evidence". Per [25], the case law urges caution before striking out claims whose outcome will turn on the reason why the matters complained of occurred, because the material available at a strike-out application will fall well short of what a full merits hearing will have. Per [34], the EAT had regard to the special need to exercise caution before summarily dismissing a claim of race discrimination.
• para-32 — Racial motivation and an overtly discriminatory act are not required : Per [32], neither an inherently discriminatory act, which the EAT took to mean an act of overt race discrimination [29], nor a racial motivation is a necessary element of a viable race discrimination claim, so the tribunal was wrong to count their absence against the claimant on the strike-out application. "The fact that a differently pleaded case containing different averments might have greater apparent merit is not the same as saying that a pleaded case without those averments has no reasonable prospect of success" [32].
• para-33 — Different managers, decisions and dates are why the provision is needed : Per [33], that the claimant's case included complaints against different people, about a range of different decisions on different occasions, all before his grievance in October 2021, was evident from his pleaded case and largely peripheral: "All these matters were reasons why Mr Waithaka needed to rely on the conduct extending over a period provision, not reasons why that provision might not apply" [33].
• para-34 — Internal reports supported the continuing-conduct case at strike-out stage : Per [34], the claimant's case had three elements: an undisputed history of complaints from the beginning of 2020; his case on the reason why, which a full evidential hearing might quite obviously inform; and his case on conduct extending over a period, which was not a bare assertion but was supported by internal reports from 2018-2019 and 2020. The reports themselves were, it appears, not before the tribunal, but their material parts were explained in his evidence and it was not suggested that they did not exist or were not to the effect he said [34]. "Although the case for conduct extending over a period based only on these reports might be a weak case, it is not fanciful to suggest that it is a case that could draw strength from what might emerge at an evidential hearing" [34]. Per [35], the case might fail, but the conclusion that it had no reasonable prospect of success was not reasonably available to the tribunal.
• para-13 — Delay in giving the decision is not of itself a ground of appeal : Per [13]-[20], applying Bangs v Connex South Eastern Ltd [2005] ICR 763, the significant delay in providing the tribunal's decisions and reasons did not amount to a serious procedural error and was not a freestanding ground of appeal; its effect could be considered within the other grounds, which challenged the tribunal's reasoning [17]-[20]. "Although the delay in providing the judgments in this case was very regrettable, I do not consider that of itself this affords any successful ground of appeal" [13].
• para-42 — Extending time: prejudice to the respondent counts, the merits and prejudice to the claimant do not (obiter) : Per [42], the possible impact of delay on a respondent's ability to defend a claim is an obviously relevant matter, but "the possibility of prejudice to the claimant who makes the application for an extension of time is a matter only for that claimant". Per [43], a tribunal should not weigh its view of the merits of out-of-time complaints when deciding whether to extend time under section 123(1)(b), applying by analogy Hartley v Birmingham City Council [1992] 1 WLR 968 on section 33 of the Limitation Act 1980. Per [44], the view that a claimant already out of time should obtain an early conciliation certificate as soon as possible was tenable. Per [45]-[46], disregarding the two errors, the refusal to extend time was reasonably open to the tribunal, because delay might prejudice the respondent's defence and the claimant had not acted promptly from May 2022.

When relevant

When a respondent applies to strike out a claimant's case that a run of complaints, involving different managers, decisions and dates, forms conduct extending over a period under section 123(3)(a) of the Equality Act 2010 [32]-[35]. It governs employment tribunal complaints about work under Part 5 of the Act at the preliminary stage, and shows HR, legal and senior leaders how a tribunal approaches that question: the claimant's case is taken at its highest [31]; special caution applies where the reason why is disputed [25], [34]; and organisational evidence, such as internal reports recording prejudice towards a group, can support a continuing-conduct case and carry it to a full hearing [34]. Toolkit analysis: it shows that an organisation's own reviews, surveys and inclusion reports can become evidence in a later claim, including claims about gender reassignment or belief, and that a long history of complaints handled one by one may be argued as one course of conduct. It is a strike-out decision only and decides nothing about whether conduct in fact extended over a period [35]. It also addresses delay in tribunal decisions [13]-[20] and, without deciding it, the just and equitable extension of time [42]-[45]. Decision support, not legal advice.