A v Choice Support (formerly MCCH Ltd)

An appellate tribunal must read an Employment Tribunal judgment fairly and as a whole. It should not infer that relevant evidence or an issue was ignored merely because the reasons do not address every detail. Where the tribunal stated the correct law and gave sufficient reasons for its conclusion, an appeal based on a granular criticism of its wording will fail.

Under section 123(1) of the Equality Act 2010, the tribunal has a wide discretion to extend time where it thinks this just and equitable. Delay, its reasons and prejudice will commonly matter, but they are not exhaustive factors. The tribunal may consider any relevant disadvantage affecting either party. An appellate tribunal should not reweigh those matters unless the discretion was exercised in principle wrongly, irrationally or outside its broad permissible range.

The Claimant alleged that a fellow employee sexually assaulted her. After internal processes, including her suspension, she resigned and presented Employment Tribunal proceedings. The tribunal dismissed claims of sexual harassment, victimisation, constructive dismissal and detriments for protected disclosures.

The appeal concerned two matters. First, the Claimant argued that the tribunal failed to decide whether the manner in which suspension was communicated was a separate detriment. Secondly, she challenged the refusal to extend time for a harassment complaint under section 123(1) of the Equality Act 2010. The central questions were whether the reasons were legally sufficient and whether irrelevant matters had infected the tribunal’s just and equitable discretion.

1. Appeal dismissed unanimously. Read fairly and as a whole, the Employment Tribunal’s reasons decided the suspension complaint, including the alleged insensitive manner of its handling. Its finding that suspension was an appropriate step to permit a fair investigation, and that the Respondent’s handling was not because of protected disclosures or protected acts, gave adequate reasons. The appeal invited precisely the over-detailed scrutiny of tribunal reasons deprecated by [2021] EWCA Civ 672.

2. Section 123(1) of the Equality Act 2010 gives an Employment Tribunal the widest discretion to decide whether an extension is just and equitable. The usual relevance of delay, its reasons and prejudice does not confine the discretion to disadvantages caused solely by delay. The tribunal could consider all relevant disadvantages affecting the parties in deciding justice and equity.

3. The tribunal had considered the Claimant’s serious allegation, ill health and hospitalisation, together with her access to legal advice and the timing of ACAS contact. It was also entitled to consider the Respondent’s disadvantage in defending proceedings without the fellow employee’s evidence and the consequences of the undisclosed workplace relationship. Those were relevant considerations, not an impermissible attribution of responsibility to the Claimant for the assault.

4. The Employment Appeal Tribunal could not revisit the relative weight assigned to those matters. The Employment Tribunal had applied the correct law, considered relevant factors and explained why it would not extend time. The contingent cross-appeal accordingly required no determination and was dismissed.

• Employment Appeal Tribunal: unanimously dismissed the Claimant’s appeal from the Employment Tribunal.
• Employment Tribunal: following a five-day hearing in May 2021, dismissed claims of sexual harassment, victimisation, constructive dismissal and detriments for protected disclosures.