Lindsay v London School of Economics and Political Science

An employment tribunal's decision whether it is just and equitable to extend time is discretionary. Where the tribunal has directed itself by reference to the relevant factors, made findings and actually tried the complaint, it need not separately ask whether a fair trial remains possible.

Race harassment under section 3A of the Race Relations Act 1976 is fact-sensitive. Unwanted racial conduct may have the prohibited effect even without that purpose.

For victimisation, the decisive issue is whether the treatment was by reason of the protected act. A tribunal must make clear findings about the decision-maker, the appropriate actual or hypothetical comparator, and the facts supporting the causal inference. Unreasonable treatment or breach of internal procedure does not itself establish that connection.

The Claimant brought complaints under the Race Relations Act 1976 arising from events in 2009. The Employment Tribunal upheld a complaint that a manager's use of "gollywog" amounted to racial harassment, but declined to extend time for that complaint. It dismissed complaints concerning other alleged direct discrimination, including the investigation of complaints by colleagues against the Claimant.

The Tribunal also upheld victimisation based on the Claimant's suspension after a grievance alleging racism. The Respondent appealed that finding. The Claimant appealed the refusal to extend time and the dismissal of the investigation complaint. The central issue was whether the Tribunal had correctly exercised its time-extension discretion and correctly analysed causation and comparison in the victimisation claim.

1. The Claimant's appeal was dismissed. The Tribunal was entitled to refuse a just and equitable extension for the isolated harassment complaint. It had applied the relevant guidance in Keeble, considered the Claimant's delay and lack of prompt action, and found that she had put the matter behind her. A separate inquiry into the possibility of a fair trial was unnecessary because the Tribunal had in fact tried the complaint and found the conduct to be harassment.
2. The Tribunal did not err in dismissing the complaint concerning the investigation of colleagues' written complaints. The circumstances were materially different: the colleagues' complaints were in writing before the Claimant provided hers in writing, and the investigation of the complaints against her was then stopped when her grievance was made. Those findings explained the apparently different treatment and entitled the Tribunal to accept the Respondent's explanation.
3. The Respondent's appeal against the victimisation finding was allowed. Victimisation requires treatment by reason of the protected act. The reverse burden did not apply. The Tribunal's reasons were unclear whether Ms Thomas, Mr Hawkins, or both made the suspension decision. It did not construct a hypothetical comparator after rejecting the actual comparators, and it did not adequately explain the causal link between the June grievance and the October suspension. A possible breach of purchase rules, or unreasonable treatment, could not by itself establish victimisation.
4. The victimisation issue was remitted to the same Tribunal. It must identify the decision-maker, consider an appropriate hypothetical comparator if necessary, and make clear findings on whether the suspension was because of the grievance.
5. The Tribunal's conclusion that the racial term used by a white manager to a black junior colleague was unwanted conduct with the prohibited effect was correct. That conclusion was not necessary to the disposition because the complaint remained time-barred.

• Employment Appeal Tribunal: The Claimant's appeal was dismissed. The Respondent's appeal against the victimisation finding was allowed, and that issue was remitted to the same Employment Tribunal.
• Employment Tribunal, London Central: Following hearings in October and December 2010 and February 2011, with reasons sent on 13 June 2011, it dismissed the direct-discrimination complaints, found one harassment complaint proved but time-barred, and upheld the victimisation complaint.