London Borough of Hillingdon v Meso

A finding that an employee was subjected to race discrimination does not, without a factual causal connection, establish that a later dismissal was also discriminatory. An appellate perversity challenge succeeds only where the tribunal’s conclusion was wholly impermissible.

Harassment findings and reasons must be read in the context of the judgment as a whole. A continuing discriminatory relationship may constitute a continuing act without separately identifying every incident.

Where proceedings remain live, a tribunal may determine an unresolved time-extension issue. Alternatively, exceptional circumstances may justify review in the interests of justice under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

The claimant, a deputy team manager, alleged race discrimination and race-related harassment by colleagues and that her dismissal following a probationary review was discriminatory. The Employment Tribunal at Watford dismissed the claims concerning dismissal and the line manager, but upheld claims arising from Ms Brady’s conduct and extended time for those claims on just and equitable grounds.

There were three linked appeals. The claimant challenged the rejection of her dismissal and line-manager claims. The employer challenged findings concerning Ms Hemming, the harassment decision, the continuing-act conclusion and the Tribunal’s reopening and extension-of-time decisions at the remedy hearing.

1. Appeals allowed in part. The employer’s appeal succeeded only insofar as the Employment Tribunal had made adverse findings concerning Ms Hemming. No discrimination claim had been put against her, and she had not had a fair opportunity to answer it. The finding was replaced with a conclusion that the Tribunal had made no proper finding against her.

2. The claimant’s challenge to the rejection of her dismissal claim failed. The Tribunal had expressly considered whether Ms Brady’s discriminatory conduct was causally connected to the dismissal and found no connection. That factual conclusion was not perverse. The evidence permitted a conclusion that the decision-makers held genuine performance concerns and that the dismissal was not caused by race discrimination.

3. The Tribunal was also entitled to find that Ms Harris’s failings resulted from poor management rather than race. It had shifted the burden of proof, heard the evidence and reached a conclusion that was not wholly impermissible.

4. The harassment conclusion disclosed no error of law. Read as a whole, the judgment identified conduct already found discriminatory, treated it as unwanted, and addressed its effect on dignity and the working environment under section 3A of the Sex Discrimination Act 1975. Its reasons were adequate.

5. The Tribunal was entitled to treat the discriminatory relationship with Ms Brady as a continuing act until 23 August 2010. In a continuing relationship, it may be unrealistic to require separate proof of the precise date and content of every final incident. This was a factual assessment supported by evidence.

6. The Tribunal could hear and determine the unresolved question whether time should be extended on just and equitable grounds while the proceedings remained live. Alternatively, the exceptional consequences of its change of position on time could justify review in the interests of justice under rule 34(3)(e) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Its discretionary assessment of delay, representation, prejudice and merits was permissible.

• Employment Appeal Tribunal: Allowed the employer’s appeal only as to Ms Hemming, and otherwise dismissed the employer’s appeals and the claimant’s cross-appeal.
• Employment Tribunal, Watford: Liability reasons dated 26 November 2012; remedy reasons dated 23 April 2013. It upheld race discrimination and harassment claims concerning Ms Brady, dismissed the dismissal and Ms Harris claims, and extended time for the successful claims.