Lindsay v London School Of Economics And Political Science

In deciding whether to extend time on a just and equitable basis, an Employment Tribunal may give substantial weight to an unexplained delay and to the claimant having put the incident behind them. Where the Tribunal has heard and determined the allegation, it need not separately decide whether a fair trial remains possible.

A victimisation finding requires clear findings identifying the decision-maker and establishing that the protected act was the reason for the less favourable treatment. Unreasonable treatment, procedural breaches, or an inadequate investigation do not alone establish that causal connection. A Tribunal should consider an appropriate hypothetical comparator where actual comparators do not answer the issue.

The Claimant brought complaints under the Race Relations Act 1976 alleging race harassment, direct discrimination and victimisation. The Employment Tribunal upheld a harassment complaint concerning a racially offensive expression, but refused a just and equitable extension of time. It dismissed a complaint concerning the investigation of written allegations against the Claimant, but upheld victimisation arising from her suspension following an allegation concerning cakes.

The Claimant appealed the refusal to extend time and the dismissal of the investigation complaint. The Respondent appealed the victimisation finding. The central issues were the exercise of the time-extension discretion, whether the investigation involved direct discrimination, and whether the suspension was by reason of the Claimant's protected grievance.

1. The Claimant's appeal was dismissed. The Employment Tribunal had correctly directed itself by reference to Keeble and was entitled to refuse a just and equitable extension for the isolated harassment complaint. It had made findings in the Claimant's favour after a full hearing. A separate inquiry into the possibility of a fair trial was therefore unnecessary. The Tribunal could properly attach considerable weight to the long, inadequately explained delay and to the finding that the Claimant had put the matter behind her.
2. The Tribunal did not err in dismissing the direct discrimination complaint concerning the investigation of written allegations against the Claimant. The circumstances of the Claimant and the other employees were materially different because their complaints were put in writing before hers. The subsequent grievance also caused the investigation into allegations against her to be stopped. The Tribunal's findings adequately explained the apparent difference in treatment.
3. The Respondent's appeal was allowed. The victimisation finding disclosed errors of analysis. The Tribunal had not clearly determined whether Ms Thomas, Mr Hawkins, or both made the suspension decision. It also failed to make findings capable of establishing that the June grievance was the reason for a suspension four months later.
4. For victimisation, the material question was whether the suspension occurred by reason of the protected act. The reasonableness of the employer's rules or its response to their breach was not determinative. The Tribunal had to address the allegation that the suspension arose from breach of the staff-purchase rules, rather than from the grievance. Its treatment of actual comparators did not remove the need to consider an appropriate hypothetical comparator.
5. The victimisation issue was remitted to the same Employment Tribunal. It was to identify the decision-maker, consider a hypothetical comparator if appropriate, and explain any evidential connection between the protected grievance and the suspension.

• 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: [2012] UKEAT 0441_11_0911.
• Employment Tribunal: The London Central Employment Tribunal, chaired by Employment Judge Woffenden, gave written reasons on 13 June 2011. It dismissed the direct discrimination complaints, refused a just and equitable extension for the harassment complaint although it found that complaint made out, and upheld the victimisation complaint.