South Wales Police Authority v Johnson (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke)

An Employment Tribunal's exercise of the just and equitable discretion to extend time must rest on findings of primary fact which support its assessment of prejudice. Where the tribunal relies on the respondent's alleged prior insight into particular discrimination complaints, it must identify an evidential basis for that insight and its source. A general reference to investigations into related matters is insufficient if it does not support that conclusion, expressly or by necessary implication.

Where the necessary factual basis is absent, the appellate tribunal may allow the appeal but remit the limitation issue to the same tribunal for reconsideration, rather than substitute a conclusion that the claims are time-barred.

The claimant, a former Head of Diversity employed by the Police Authority, brought two Employment Tribunal claims alleging race discrimination and victimisation. The combined claims included 62 complaints. The Tribunal dismissed most claims but upheld two material complaints of direct race discrimination, numbered 35 and 38. Following a review, a further upheld complaint was revoked.

The Authority appealed the remaining findings. Since the relevant events occurred in August and September 2004 and the first claim was presented on 20 May 2005, the central issue was whether the Tribunal had properly exercised its just and equitable discretion to extend time beyond the primary limitation period.

1. Appeal allowed. The finding supporting the extension of time for complaints 35 and 38 could not stand. The Tribunal had referred to investigations and disciplinary matters which might have given the Authority some insight into the complaints, but it made no finding of primary fact capable of supporting that conclusion.

2. The absence was material. In particular, there was no clear finding, express or implicit, identifying whether the Authority had insight into either specific complaint, the extent of that insight, or its source. The difficulty was especially apparent for complaint 38, because the Gwent meeting was not identified until further particulars were served in February 2010.

3. The court rejected the Authority's perversity challenge to the substantive discrimination findings. Applying the high threshold in Yeboah v Crofton, [2002] IRLR 634, that challenge did not surmount the required hurdle.

4. The court declined to substitute a finding that the complaints were time-barred. The balancing exercise on limitation should instead be revisited by the same Tribunal, which was familiar with the extensive evidence and had demonstrated fairness and impartiality on the review application.

5. The matter was remitted to the Beard Tribunal to reconsider the evidential basis for the Authority's alleged insight, after hearing both parties' submissions. If necessary, it could then determine remedy.

• Employment Appeal Tribunal: Allowed the Authority's appeal and remitted the limitation issue to the same Employment Tribunal.
• Employment Tribunal: On 26 September 2011, dismissed all claims in the second claim form and most claims in the first, but upheld three direct race discrimination complaints. On review on 23 December 2011, it revoked one upheld complaint and part of another finding, leaving complaints 35 and 38 material to this appeal.