Pathan v South London Islamic Centre

A discrimination claim is not defeated merely because the employer did not objectively demote the employee. The tribunal must decide whether a reasonable worker would or might regard the treatment, in all the circumstances, as a detriment.

An extension of time for a discrimination claim turns on what is just and equitable. It does not require exceptional circumstances. The tribunal should ordinarily consider the relative prejudice caused by granting or refusing an extension.

For victimisation, a protected act need only be a significant factor in the impugned decision. A finding that another reason was the main or primary reason does not answer that question. Reasons must address material evidence capable of supporting an inference of unlawful causation.

The claimant was a teacher at the respondent mosque's girls' Madrassah. She had undertaken additional leadership and administrative duties. A 2009 roles letter removed or reassigned those duties and reserved the title of Head for another person. She brought a sex-discrimination claim five months after the primary time limit expired.

After the respondent learned of the claim, its management committee considered obtaining legal advice and proposed, subject to that advice, suspending the claimant. She was later suspended, ostensibly pending investigation into misconduct and the absence of a CRB certificate. She brought further victimisation claims concerning the suspension and its continuation.

The Employment Tribunal dismissed the claims on the merits, held the sex-discrimination claim out of time, and also held the first victimisation claim out of time. The claimant appealed in relation to claims 1, 3 and 4. The central issues were detriment, the just-and-equitable extension of time, and whether the protected act was a significant factor in the suspension.

1. Appeal allowed. Claims 1, 3 and 4 were remitted to a differently constituted Employment Tribunal.

2. On claim 1, the Employment Tribunal erred by treating the absence of an objectively established demotion as determinative. The relevant question was whether a reasonable employee would or might regard the roles letter and treatment as a detriment. There was material, including the letter itself, from which the claimant might reasonably have perceived a demotion. The Tribunal had not addressed that question or whether any detriment was discriminatory.

3. The limitation decision was also erroneous. The governing question was whether an extension was just and equitable, not whether exceptional circumstances existed. Although the claimant's reasons for delay were relevant, the Tribunal failed to consider the relative prejudice of extending or refusing time. That omission could have affected the result.

4. On claims 3 and 4, the Tribunal applied the wrong causation approach when it found that the lack of a CRB certificate was the main or primary reason for suspension. The issue was whether the earlier discrimination claim was a significant factor in the suspension or its continuation.

5. The Tribunal's failure to address the management-committee note was a material deficiency in its reasons. The note could strongly support an inference that the protected act caused or influenced the suspension. The later response to the Burns/Barke request did not satisfactorily cure the defect and appeared capable of rewriting the original decision.

6. Given the three errors of law, the unsatisfactory response to the Burns/Barke request, and the Tribunal's credibility comments, remittal to the same Tribunal was inappropriate.

• Employment Appeal Tribunal: allowed the claimant's appeal concerning claims 1, 3 and 4 and remitted those claims to a newly constituted Employment Tribunal.
• Employment Tribunal, London (South): decision sent on 20 March 2013 after a 13-day hearing. It rejected the relevant claims on their merits, held claim 1 barred by time, and held claim 3 out of time.