Harden v Wootlif & Anor

When deciding whether it is just and equitable to extend time under Equality Act 2010 section 123(1)(b), an Employment Tribunal must consider all relevant circumstances. Where there are multiple respondents whose positions materially differ, the discretion must be exercised separately in respect of each.

A finding that an out-of-time harassment complaint adds little to extant claims because the underlying matters will arise as background may justify an extension against a respondent facing those other claims. It cannot, without separate consideration, justify an extension against a respondent who faces only the harassment complaint.

The claimant brought employment claims arising from his dismissal, including religious-belief discrimination, harassment, victimisation and protected-disclosure detriment. The harassment complaint, presented against both respondents, was out of time. The Employment Judge nevertheless extended time on the basis that the matters would arise as background to the claimant’s remaining claims and that the harassment complaint therefore added little to the proceedings.

The individual appellant contended that he faced only the harassment complaint, whereas the corporate respondent faced the remaining claims. The issue on appeal was whether the Employment Judge had erred by failing to consider separately whether it was just and equitable to extend time against each respondent.

1. Appeal allowed. The Employment Judge erred in law in extending time for the harassment complaint against the individual appellant without separately considering his position.

2. The discretion under Equality Act 2010 section 123(1)(b) requires consideration of all relevant circumstances. A person who is a respondent to an Employment Tribunal claim occupies a materially different position from a witness, particularly where the claim alleges discrimination or harassment.

3. There were two respondents to the harassment complaint, and their circumstances differed. The corporate respondent faced other continuing claims. The individual appellant faced no claim other than the out-of-time harassment complaint. The Employment Judge was therefore required to decide separately whether an extension was just and equitable in respect of each respondent.

4. The determinative reasoning below was that the harassment complaint would add little because its factual matters would have to be considered as background to the remaining claims. That reasoning could apply to the corporate respondent. It did not apply to the individual appellant, since no other claim would remain against him if the harassment claim were time-barred. Nothing in the Employment Judge’s reasons showed that this distinction had been considered.

• Employment Appeal Tribunal: allowed the individual appellant’s appeal from the Employment Judge’s judgment, sent to the parties on 22 July 2014, extending time for the harassment complaint.
• Employment Tribunal: held that it was just and equitable under Equality Act 2010 section 123(1)(b) to extend time for the out-of-time harassment complaint.