J Logo v Payone GmbH & Ors

For harassment under Equality Act 2010, the unwanted conduct itself must be related to the protected characteristic. That connection is broader than conduct motivated by the characteristic. It may arise from the content and context of the conduct even where the alleged harasser did not intend offence.

Where harassment is alleged by effect, the tribunal must address the complainant’s perception, all the circumstances and whether it was reasonable for the conduct to have the proscribed effect. A finding that conduct was not intended to offend does not answer that question. In exercising the just-and-equitable extension of time, a tribunal must weigh the genuine prejudice to both parties. It must not require an objectively justified explanation for delay.

The claimant, a Black British employee, appealed from an Employment Tribunal judgment sent to the parties on 15 September 2023. Most of his claims had been dismissed.

The appeal concerned three race-harassment complaints. The Tribunal had found that a colleague’s black-face costume in 2016 and a highly offensive comment at a 2019 dinner amounted to harassment by effect, but ruled both complaints out of time. It had dismissed a further complaint concerning the circulation, in a work WhatsApp group, of a video advertisement depicting a purportedly pure, white, blonde utopia.

The central issues were whether the Tribunal had properly applied the requirements that conduct be related to race and have the relevant effect, and whether it had lawfully refused just-and-equitable extensions of time.

1. Appeal allowed. The Tribunal erred in its analysis of the WhatsApp-video complaint and in refusing to extend time for the two substantiated complaints. The correction sought by the respondents’ time cross-appeal was also accepted: the dinner complaint was approximately 18 months, rather than four months, late.

2. Under section 26 of the Equality Act 2010, it is the alleged harasser’s conduct which must be related to the protected characteristic. The connection is wider than a discriminatory motive. The relevant conduct was the circulation, without explanation, of the video to a small work group which included the claimant. The Tribunal’s majority perversely found no connection with race. The video’s portrayal of a utopia inhabited by toned, white, blonde people described as pure was plainly related to race, although it was evidently intended to undermine rather than endorse racial-purity ideology.

3. The Tribunal also failed properly to apply the effect limb. It concentrated on the sender’s belief that the video was humorous and his lack of intention to offend. Those matters were relevant to purpose, but did not replace the statutory enquiry into the claimant’s perception, the circumstances of circulation and the objective reasonableness of the asserted effect. The effect issue was therefore set aside. The unchallenged finding that the sender lacked the purpose of creating the proscribed effect stood.

4. The Tribunal’s refusal to extend time was legally flawed. It had decided that it could determine both complaints, yet treated delay-related memory difficulties as substantial prejudice when those difficulties did not materially affect the established effect-based harassment findings. It failed expressly to weigh the obvious prejudice to the claimant of receiving no remedy. It also treated the absence of an objectively reasonable or convincing explanation for delay as if it were required. Section 123 confers a broad discretion and does not impose that requirement.

5. The time issues for the two established complaints, and the effect and time issues for the WhatsApp complaint, were remitted to the same Tribunal panel. The existing panel was also best placed to deal with causation, which had been assessed only in relation to upheld harassment complaints.

• Employment Appeal Tribunal: Appeal allowed. The Employment Tribunal’s time determinations for two substantiated harassment complaints, and its decision on the WhatsApp-video complaint, were set aside and remitted.
• Employment Tribunal: Judgment and reasons sent on 15 September 2023. Most claims were dismissed. Two complaints were found to constitute harassment by effect but were held out of time; the WhatsApp-video complaint was dismissed.