Background
Washington Waithaka worked for Barclays from 2010 and was dismissed on redundancy grounds effective 31 October 2021. He filed an Employment Tribunal claim on 5 September 2022—over nine months after his termination—alleging 33 instances of direct race discrimination, plus victimisation and harassment. The majority of his complaints spanned from January 2020 onwards, falling well outside the three-month limitation period under section 123(1)(a) of the Equality Act 2010. Waithaka pleaded that all acts, collectively, constituted “conduct extending over a period” under section 123(3)(a) of the 2010 Act, which would make his claims timely, as time would run from the end of the continuous conduct rather than each individual act. He also alleged that Barclays had improperly handled his October 2021 grievance complaint, with those post-termination matters finalised in April 2023.
At a preliminary hearing in July 2023, Barclays applied to strike out the pre-termination complaints as time-barred. The Employment Tribunal agreed, finding under rule 37(1)(a) of the Employment Tribunal Rules 2013 that Waithaka’s “conducting extending over a period” submission had “no reasonable prospect of success.” The Tribunal also refused Waithaka’s alternative application for an extension of time. A 15-month delay followed before written reasons were provided (27 January 2025), leading Waithaka to pursue an additional appeal ground based on Article 6 ECHR (right to fair trial within reasonable time).
The Court’s Holding
The Employment Appeal Tribunal allowed Waithaka’s appeal on the strike-out issue. Mr Justice Swift held that the Tribunal’s conclusion that the “conduct extending over a period” argument had no reasonable prospect of success was a conclusion “that no reasonable tribunal properly directing itself on the law and the facts could have reached.” The Tribunal had misapplied the governing case law from Commissioner of Police of the Metropolis v Henricks [2003] ICR 530, which established that “conduct extending over a period” is a matter for general factual evaluation and should not be confined to rigid formulaic categories such as policies, rules, or explicit schemes. The proper question is whether the complaint relates to “an ongoing situation or a continuing state of affairs” rather than isolated acts.
The EAT found the Tribunal had improperly required Waithaka to demonstrate specific discriminatory acts or direct personal links between individuals across different business units. Instead, the court recognised that Waithaka’s pleaded case—that he had suffered a culture of less favourable treatment across four business units and that the grievance process represented a continuation of that pattern—was reasonably arguable on the evidence before the Tribunal. Waithaka had proffered internal Barclays reports from 2018–2020 noting prejudice toward Black employees and under-representation at senior levels, and his witness statement consistently characterised his experience as systemic. The Tribunal’s failure to engage with institutional racism as a potential unifying thread connecting pre- and post-termination acts constituted an error of principle.
On the delayed judgment ground, the EAT dismissed the appeal. While acknowledging the delay was “very regrettable” and “significant,” the court applied Bangs v Connex South Eastern Limited [2005] ICR 763, holding that delay alone does not breach Article 6 absent serious procedural error or real risk of deprivation of a fair trial. The passage of time may colour evaluation of other grounds (perversity, adequacy of reasons) but does not stand as an independent basis for reversal. The extension of time issue became academic following success on the strike-out ground, though the EAT noted that had it been necessary to decide it, the Tribunal’s refusal to extend time would likely have been upheld.
Key Takeaways
- The “conduct extending over a period” doctrine in discrimination law requires flexible factual evaluation, not strict adherence to formal categorisations like “policy” or “scheme.”
- Evidence of institutional racism, structural patterns, and under-representation at different business units can connect seemingly disparate complaints by different individuals into a single course of continuing conduct.
- Tribunals must exercise caution when striking out discrimination claims under rule 37(1)(a) where the outcome turns on factual inference about protected characteristics; such matters ordinarily belong in the merits hearing.
- Procedural delay by courts, while serious and regrettable, does not constitute independent grounds for appeal absent breach of a fundamental right to a fair trial or perversity in fact-finding traceable to the delay.
Why It Matters
This decision substantially strengthens the position of claimants alleging systemic or institutional discrimination. By reversing a strike-out that relied on formal compartmentalisation of complaints, the EAT has made clear that the temporal and doctrinal breadth of “conduct extending over a period” claims cannot be defeated by narrow procedural parsing. Employers cannot rely on the absence of overlapping individual perpetrators to fragment what a claimant characterises as a unifying culture of discrimination. The decision also reaffirms that factual questions about the reason for treatment—central to discrimination claims—are generally unsuited to early dismissal and belong before a full tribunal.
The judgment further signals judicial impatience with delays in tribunal judgments, even while stopping short of treating delay as an independent ground of appeal. The court’s willingness to consider delay as context for other grounds (particularly perversity) may encourage tribunals to expedite reasons in complex discrimination cases. For claimants facing limitation barriers in race discrimination cases, Waithaka reopens pathways to merits hearings by broadening the types of factual patterns that can support continuing-conduct arguments.