Prasad v Epsom & St Helier University Hospitals NHS Trust

Where a harassment complaint concerns the sending of a communication, the tribunal must address the motivation for sending it to the particular recipients complained of. The absence of overtly sexist content does not itself preclude a finding that the conduct was related to sex.

If a tribunal finds that copies were sent to particular recipients without professional necessity and with a purpose of humiliation, it must give adequate reasons for its conclusion on whether sex materially influenced that distinct conduct. It is not bound either to apply the statutory burden of proof or to find that it has shifted if it can make a reasoned positive factual finding.

An earlier act cannot form part of conduct extending over a period unless discriminatory conduct occurred within the primary limitation period. Whether to extend time on a just and equitable basis remains a fact-sensitive balancing exercise.

The Claimant, a consultant cardiologist, brought claims including harassment related to sex under Equality Act 2010. The Employment Tribunal dismissed all claims. This appeal concerned its dismissal of the complaint arising from an anonymous letter sent by a junior colleague to five recipients.

The Tribunal found that sending the letter to three regulatory or management recipients reflected genuinely held concerns and was professionally reasonable. It found that sending it to the Secretary of State for Health and the patient was neither professionally required nor reasonable, was intended to humiliate the Claimant, and reasonably had that effect. It nevertheless found that the letter was not related to sex.

The Claimant appealed that conclusion. The Respondent cross-appealed the finding that the complaint was in time as part of conduct extending over a period. The central issues were whether the Tribunal had adequately addressed the sender's motivation for the two disputed recipients, and whether the claim could proceed notwithstanding the limitation period.

1. Appeal and cross-appeal allowed; matter remitted. The Tribunal's conclusion that the letter was not related to sex could not stand insofar as it concerned sending copies to the Secretary of State and the patient.

2. The complaint concerned the sending of the letter, including the choice of recipients, rather than its contents alone. Although sexist content could support an inference that sending was related to sex, the absence of such content could not determine the issue.

3. The Tribunal had treated the two disputed recipients differently. It found that sending to them was outside any reasonable professional duty and was done to humiliate the Claimant. Having made findings which gave that conduct a distinct character, it had to decide and explain whether the Claimant's sex materially influenced the decision to send the letter to them. Its reasons did not adequately do so and were not Meek compliant.

4. The finding of an error did not require a substituted finding of harassment. The evidence did not compel either conclusion on whether the burden in section 136 had shifted or, if it had, whether it was discharged. On remission, the Tribunal could consider section 136 or make a positive reasoned factual finding without resort to it, consistently with Hewage.

5. The Claimant correctly conceded that the July 2015 conduct could not be treated as part of a continuing act. There was no discriminatory conduct found within the primary limitation period. The Tribunal had not separately exercised its just and equitable jurisdiction for this complaint. It must therefore determine on remission, after identifying and weighing the relevant circumstances, whether it is just and equitable to extend time.

• Employment Appeal Tribunal: Appeal and cross-appeal allowed. The harassment and limitation issues were remitted to the Employment Tribunal.
• Employment Tribunal: Dismissed the Claimant's claims of direct sex discrimination, harassment, victimisation and protected-disclosure detriment, including the harassment complaint concerning the anonymous letter.