K Paczkowska v R-Com Consulting Limited

Where victimisation and direct disability discrimination are both advanced in respect of the same detriment, a tribunal must determine each claim. A finding that the detriment was because of a protected act does not, without more, exclude disability as an additional reason.

A tribunal also errs if it rejects a just and equitable extension of time on the stated basis that no explanation was provided when an application containing an explanation was before it and had been identified as an issue. The error does not dictate that time must be extended; that discretionary question remains for the tribunal.

The appellant appealed from the decision of the Manchester Employment Tribunal, promulgated on 1 August 2019, concerning complaints of harassment, discrimination and victimisation.

The appeal raised six grounds. The material successful grounds concerned the respondent’s refusal to provide an employment reference, for which the Tribunal had upheld a victimisation claim but had declined to decide a direct disability discrimination claim, and alleged discriminatory comments at a job interview in April 2016, which the Tribunal had held out of time.

The central questions were whether those omissions were material errors of law and whether the remaining challenged procedural and substantive rulings disclosed any error.

1. Appeal allowed in part. Grounds 3 and 6 succeeded. Grounds 1, 2, 4 and 5 were dismissed.

2. On ground 3, the Employment Tribunal had accepted that refusal of a reference was victimisation because the appellant had brought Equality Act proceedings. It nevertheless had to decide the pleaded claim of direct disability discrimination under section 13 of the Equality Act 2010. The two possible reasons were not mutually exclusive. The Tribunal had expressly declined to make the necessary finding and had not found that the protected act was the sole reason. Its error was material, although its undisturbed findings remained available when it reconsidered that issue.

3. On ground 6, the Tribunal was entitled to find that the interview allegation was an isolated act rather than conduct extending over a period. However, it erred in saying that no explanation had been given for its late presentation. The appellant had made a written application to extend time, setting out health-related reasons, and the issue had been recorded at a preliminary hearing. The Tribunal should have considered that material. Whether it is just and equitable to extend time remains for the Tribunal.

4. The Tribunal had made a sufficiently clear finding that the alleged harassment comment concerning a Russian woman had not been made as claimed. It was also entitled to treat the appellant’s knowledge of the context and of the third party as relevant to harassment, although a comment need not be directed at the claimant.

5. The Tribunal permissibly allowed withdrawal of a concession concerning vicarious liability after giving both parties an opportunity to address it. It was entitled to consider fairness, prejudice, timing and prospects. Its findings that the author of the impugned email was neither the respondent’s employee nor its agent disclosed no error. The remaining procedural complaints did not establish unfairness.

• Employment Appeal Tribunal: Appeal allowed on grounds 3 and 6; the remaining grounds were dismissed.
• Employment Tribunal, Manchester: Decision promulgated on 1 August 2019. The decision was set aside only to the extent necessary to determine the direct disability discrimination claim concerning the reference and reconsider extension of time for allegation 1.