Waithaka v Barclays: EAT restores struck-out race discrimination claim after 15-month tribunal delay

The Employment Appeal Tribunal has set aside a strike-out of the greater part of a race discrimination claim against Barclays, holding that no reasonable tribunal could have concluded that the claimant's continuing act case had no reasonable prospect of success.

In Waithaka v Barclays Execution Services Ltd [2026] EAT 105, handed down on 17 July 2026, Mr Justice Swift allowed an appeal against a decision of the Watford Employment Tribunal, which had struck out 28 pre-termination allegations as out of time under section 123(1)(a) of the Equality Act 2010 and refused an extension.

Washington Waithaka, formerly a vice-president in Barclays' treasury department, presented a claim in September 2022 pleading 33 allegations of direct discrimination, one of harassment and 15 of victimisation, spanning early 2020 to the determination of his internal grievance appeal in April 2023. His case was that the whole represented conduct extending over a period within section 123(3)(a), so that all complaints were in time.

The preliminary hearing took place on 4 July 2023. The written record of the strike-out decision did not reach the parties until 7 October 2024, and written reasons not until January 2025. The Regional Chairman had written apologising, and the employment judge attributed the delay to ill health. Swift J accepted the delay was serious and significant, and that the bare explanation offered did not answer it.

The article 6 ground nevertheless failed. Applying Bangs v Connex South Eastern Ltd, the judge held that unreasonable delay is a question of fact and founds an appeal only where it amounts to a serious procedural error depriving a party of the substance of a fair trial. Nothing here suggested the delay's impact went beyond the possibility of perverse findings or inadequate reasons, matters capable of being addressed through the other grounds. That said, Swift J confirmed he had the passage of time well in mind when testing the robustness of the tribunal's reasoning.

On the substantive ground, the judge found large parts of the tribunal's analysis wide of the mark. The tribunal had treated the absence of any inherently discriminatory act, and the absence of any assertion that individual managers were motivated by race, as counting against the claimant. Neither is a necessary element of a viable race discrimination claim, and the fact that a differently pleaded case might have looked stronger is not a reason to hold the pleaded case hopeless. Points about different managers, different decisions and different dates were, likewise, reasons why the claimant needed section 123(3) rather than reasons why it could not apply.

Taking the claim at its highest, and applying the caution required before summarily dismissing discrimination claims, the judge held the conclusion impermissible. The continuing act case was not bare assertion: it drew on internal Barclays reports from 2018 to 2020 noting prejudice towards black employees and their under-representation at senior levels. Though possibly weak, it might draw strength from an evidential hearing on the reason why the events occurred, consistent with the claimant's implicit case that the run of events could not be coincidence.

The extension of time appeal became academic, but Swift J indicated it would have failed. He criticised two strands of the tribunal's reasoning: prejudice to the claimant from the possible unavailability of the respondent's witnesses was irrelevant, being a matter for him alone; and the tribunal should not have assessed the merits, an exercise he described as too speculative to be of rational worth, drawing on Hartley v Birmingham City Council. Criticism of the time spent on early conciliation was, however, tenable. Setting the flawed strands aside, the conclusion remained permissible.

The claim will be remitted for determination on its merits.