Habinteg Housing Association Ltd v Holleron

For a just and equitable extension of time, an Employment Tribunal must have some evidential basis for the claimant’s reason for delay. The reason may be inferred, but knowledge of the facts giving rise to the claim does not itself explain subsequent delay.

Where the disputed issue is whether words were spoken, the primary facts must be decided on relevant evidence. The reverse burden under Equality Act 2010 section 136 does not establish those facts. An adverse inference may arise from a party’s failure to call an available witness, but irrelevant later conduct cannot prove what was said.

The claimant succeeded before the Liverpool Employment Tribunal on a complaint of harassment related to perceived sexual orientation. The complaint concerned questions allegedly put to a tenant by the employer’s investigator. The Tribunal found the claim in time after extending the statutory limit on a just and equitable basis.

The employer appealed. It challenged the Tribunal’s use of adverse inferences and its exclusion of the investigator’s signed statement and contemporaneous note. It also contended that there was no evidence explaining the claimant’s delay. The central issues were whether the harassment finding was reached by a lawful evidential approach and whether the extension of time could stand.

1. Appeal allowed. The Tribunal’s finding of harassment could not stand. Its task was to decide, on the balance of probabilities, whether the investigator had used words conveying that she perceived the claimant to be lesbian and suspected sexual exploitation of the tenant. If so, the conduct would be related to perceived sexual orientation and the remaining issue would be whether it created the statutory environment.

2. The Tribunal wrongly used the reverse burden of proof under Equality Act 2010 section 136 to assist in establishing the primary fact of what was said. Section 136 was unnecessary to that factual issue. A Tribunal may take account of the absence of an available witness who could contradict an allegation, but that is an ordinary evidential inference, not an application of the reverse burden.

3. The Tribunal had treated matters with no logical bearing on the conversation as supporting proof that it occurred. The length of an earlier meeting and management’s later failure to investigate could not establish what the investigator had said. The claimant’s belief was relevant to the alleged environment, but not to whether the words had been spoken.

4. The Tribunal also erred by giving no evidential weight to the investigator’s signed statement and contemporaneous note, while receiving the tenant’s account through the claimant. It had to take that material into account to an appropriate extent, with weight for it to determine, or give clear and sustainable reasons for excluding it. Those errors would otherwise have required remission.

5. The appeal on time also succeeded. Applying British Coal Corporation v Keeble [1997] IRLR 336, the reason for and extent of delay required consideration. There was no evidence, direct or inferential, explaining why the claimant did not present her claim in time. Her later knowledge of the alleged conversation did not supply that missing reason. The extension had to be refused. A finding was substituted that the Tribunal had no jurisdiction to determine the claim.

• Employment Appeal Tribunal: Allowed the employer’s appeal and substituted a finding that the Employment Tribunal had no jurisdiction to determine the harassment claim.
• Employment Tribunal, Liverpool: In reasons delivered on 12 March 2014, dismissed the claimant’s other claims but upheld her perceived-sexual-orientation harassment claim and extended time on a just and equitable basis.