Fanutti v. The University of East Anglia

For victimisation, detriment is assessed objectively: the question is whether a reasonable worker would or might regard the treatment as a disadvantage. Where disciplinary concerns are genuinely raised through an appropriate process, a reasonable employee may recognise the need for investigation and suffer no actionable detriment, even if protected acts formed part of the background.

In deciding whether to extend time on a just and equitable basis, the tribunal must consider the circumstances of the delay. A claimant who provides no evidence or argument explaining delay may leave the tribunal with no basis to exercise the discretion. The tribunal need not enumerate every potentially relevant factor where it has properly directed itself and considered the material before it.

The claimant, an academic employed by the respondent university, brought three Employment Tribunal claims alleging race and sex discrimination, victimisation, harassment and unfair dismissal. The Tribunal upheld her unfair-dismissal claim but rejected the surviving discrimination-related claims, and held many complaints to be out of time.

Her dismissal followed disciplinary proceedings initiated after Professor Ward investigated her grievance. On appeal, she challenged the rejection of a victimisation complaint concerning Professor Ward's complaint against her, and the refusal to extend time for freestanding discrimination complaints. The central issues were whether she had suffered a detriment and whether the Tribunal erred in refusing a just and equitable extension.

1. Appeal dismissed. The Employment Tribunal made no error of law on either ground.

2. On victimisation, the Tribunal had correctly directed itself in accordance with Shamoon, [2003] ICR 337. The detriment inquiry requires an objective assessment of whether a reasonable worker would or might regard the treatment as disadvantageous. The reasonable employee referred to in the Tribunal's reasoning was the claimant, not Professor Ward.

   The Tribunal was entitled to find that a reasonable employee would recognise the need for genuine concerns to be investigated through proper channels. Professor Ward's concerns extended beyond the making of the grievance and related to conduct he regarded as serious. Even if there had been a significant causal connection between the protected acts and the disciplinary proceedings, that conclusion on detriment was open to the Tribunal. It was therefore unnecessary to determine the causation limb separately.

3. On limitation, the statutory discretion to extend time justly and equitably required attention to the circumstances explaining why the claims were late. The claimant had adduced no evidence or argument identifying an impediment to timely presentation or another factor justifying an extension. The Tribunal was entitled to focus on the issues and evidence actually advanced.

   Prejudice was relevant, but it was only one part of the wider inquiry. The Tribunal had heard extensive evidence, was aware of difficulties caused by the age of some allegations, and had properly directed itself. An appellate court should not subject tribunal reasons to unrealistically detailed scrutiny or demand an express checklist of every possible factor.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal's rejection of the challenged victimisation and out-of-time discrimination complaints was upheld.
• Employment Tribunal: Judgment and Reasons sent on 10 December 2015, followed by a reconsideration judgment. The Tribunal found the claimant unfairly dismissed but rejected the surviving discrimination, victimisation and harassment claims, and dismissed many complaints as out of time.