Secretary of State for Justice v Alan Johnson

For a harassment complaint, a tribunal must identify the respondent’s specific unwanted conduct. If conduct is said to extend over a period, it must identify its nature, when it ended and when it ceased to be unwanted. Those findings are necessary before deciding whether the claim was brought within the primary time limit under Equality Act 2010.

When deciding whether an extension is just and equitable, the tribunal has a broad discretion and must consider all significant circumstances. This includes the prejudice caused by having to investigate historic events, even where the formal delay in presenting the claim was short and neither party caused a later delay before trial.

The claimant, a prison officer, brought an employment tribunal claim alleging disability-related harassment. The tribunal upheld one allegation: that he had been compelled to complete an ill-health retirement assessment application after saying that he did not want medical retirement.

The application was submitted on 20 February 2013 and the claim form on 19 December 2013. Proceedings were then stayed for several years pending resolution of a personal injury claim. The Secretary of State appealed the tribunal’s conclusions that the harassment complaint was in time and that it was just and equitable to extend time.

The central issues were whether the tribunal had identified conduct extending over a period, and whether it had considered all relevant matters in exercising its discretion under Equality Act 2010.

1. Appeal allowed on both grounds. The tribunal’s conclusion that the claimant had been harassed did not identify the specific conduct by the respondent which constituted unwanted conduct. It also did not determine whether the alleged conduct was confined to pressure to submit the ill-health retirement application on 20 February 2013, or what further conduct continued thereafter.

2. Under section 123, conduct extending over a period is treated as done at the end of that period. The tribunal therefore had to make findings about the nature and end date of any continuing conduct, including the date by which it ceased to be unwanted. Without them, it could not determine the extent of any delay beyond the primary three-month time limit before considering a just and equitable extension.

3. The tribunal also erred by treating only the period by which presentation of the claim exceeded the primary limit as relevant. Adedeji establishes that a tribunal may consider the consequences of granting an extension, including the need to determine events which occurred long before the hearing. The later delay before trial was not either party’s fault, but the resulting need to investigate matters from 2012 and 2013 remained a relevant factor affecting the respondent’s ability to defend the claim.

4. The matter was remitted, if practicable, to the same tribunal. Its detailed findings were largely unchallenged and it was well placed to identify the alleged harassment and then reconsider whether an extension beyond three months would be just and equitable in all the circumstances.

• Employment Appeal Tribunal: Allowed the respondent’s appeal and remitted the harassment time-limit issue to the same employment tribunal if practicable.
• Employment Tribunal, North Shields: Found for the claimant on one harassment allegation, including that the complaint was in time or should receive a just and equitable extension.