Lindsay v London School of Economics and Political Science

For harassment, offensive words or the offence caused do not by themselves establish that conduct was on racial grounds. The tribunal must ask why the speaker acted as he did, while considering context and keeping that inquiry distinct from the purpose or effect of the conduct. An extension of time on just and equitable grounds is multifactorial; absence of prejudice to the respondent does not compel an extension. In a victimisation claim, knowledge of a protected act alone cannot establish the retaliatory reason. Tribunals must explain their reasoning, address competing explanations and avoid relying on material findings that were not advanced or put in evidence.

The claimant brought claims under the Race Relations Act 1976 for racial harassment, direct discrimination and victimisation. The Employment Tribunal rejected the harassment and direct discrimination claims, but upheld the victimisation claim. The Employment Appeal Tribunal dismissed the claimant’s appeal on harassment and direct discrimination, allowed the respondent’s appeal on victimisation and remitted that claim for further findings under UKEAT/0440/11/JOJ and UKEAT/0441/11/JOJ. The claimant appealed on all three claims, and the respondent cross-appealed against remittal. The central issues were whether the tribunals had erred in their treatment of racial grounds, limitation and victimisation, and whether the victimisation claim could properly be determined without further findings.

1. Harassment and limitation. The appeal on racial harassment was dismissed. The Employment Tribunal had exercised the discretion under section 68 properly. An extension of time was not automatic because a fair trial remained possible. The claimant had to show that an extension was just and equitable. The assessment was multifactorial and the court could interfere only for an error of principle, failure to take account of a relevant matter, consideration of an irrelevant matter or a plainly wrong conclusion.
2. The tribunal was entitled to consider the length and unexplained cause of the delay, the isolated nature of the incident, the claimant’s ability to raise it internally and the absence of any explanation connected with her absence from work. It had not failed to consider prejudice or the loss of a remedy.
3. Racial grounds. Although unnecessary to the outcome, the court considered the alternative ground. Whether conduct was on racial grounds required an inquiry into why the speaker acted as he did. Context remained relevant. The racial character or effect of a word did not make its use racial in every context. The tribunal was entitled to infer racial grounds from the speaker’s dishonesty about using the term and his recognition that its use in the presence of a black person could cause serious offence.
4. Direct discrimination. The tribunal was entitled to accept timing, the need for written complaints and the decision to prioritise the claimant’s grievance as a non-racial explanation for the different procedural treatment. No error of law was established.
5. Victimisation. The phrase “by reason that” in section 2 required the tribunal to determine the decision-maker’s conscious or unconscious reason, rather than apply ordinary causation. Knowledge of the protected act was wholly neutral and did not itself justify an inference of victimisation. The tribunal had to explain why any competing explanation was rejected. Its reasoning was inadequate, and it had wrongly relied on a finding that the decision-maker knew money had been left when that allegation had not been advanced or put in cross-examination.
6. The Court of Appeal was not in a position to make conclusive findings or speculate about an alternative basis for the tribunal’s decision. The EAT was therefore right to remit the victimisation claim. The Employment Tribunal was directed to determine who made the suspension decision, whether that person knew money had been left for the cakes, and whether the decision was made by reason of the protected act. The appeal was dismissed on all three claims.

• Court of Appeal (Civil Division) dismissed the claimant’s appeal on all three claims and upheld the remittal of the victimisation claim.
• Employment Appeal Tribunal dismissed the claimant’s appeal on harassment and direct discrimination, allowed the respondent’s appeal on victimisation and remitted that claim under UKEAT/0440/11/JOJ and UKEAT/0441/11/JOJ.
• Employment Tribunal dismissed the harassment and direct discrimination claims but upheld the victimisation claim.