Johnson and Johnson Medical Limited v Tolulope Fayokun

An employment tribunal deciding direct discrimination need not always construct a hypothetical comparator or decide less favourable treatment as a separate first step. It may focus on why the claimant was treated as she was, provided it considers realistic non-discriminatory explanations and makes any comparison needed to assess like with like. A benign purpose does not answer a finding that treatment was because of race.

When deciding whether to extend time under the Equality Act 2010, the tribunal must weigh all relevant circumstances. The length of the delay, any reasons for it and prejudice to the respondent will almost always be relevant. Merits and absence of prejudice do not dictate the result. Failure to consider the delay and any reasons for it is an error of law.

The claimant, who was born and raised in Nigeria, brought numerous complaints arising from her employment by the respondent. The Employment Tribunal dismissed most of them but upheld three related complaints of direct race discrimination concerning a Nigerian working profile used in managing the claimant and comments linking her treatment to Nigerian traits. It extended time for those complaints on the just and equitable basis.

The respondent appealed. The Employment Appeal Tribunal considered whether the discrimination findings involved errors concerning the Tribunal’s reasons, comparator analysis or assessment of the evidence, and whether the time extension could stand despite the Tribunal’s treatment of delay. The central issues were whether the discrimination findings disclosed an error of law and whether the extension of time had been properly assessed.

1. The appeal against the direct race discrimination findings was dismissed. The Tribunal’s reasons were to be read fairly and as a whole, not analysed with undue technicality: Hewage v Grampian Health Board [2012] ICR 1054. Reasons need not address every argument or evidential detail, but must identify the issues and critical findings and explain how the law was applied so that the parties and an appellate tribunal can understand the decision. Read in context, the Tribunal sufficiently explained its findings about the profiling and the comments concerning Nigerian traits.

2. The Tribunal was not required to construct a hypothetical comparator as a separate stage before deciding why the claimant was treated as she was. Under section 13(1) of the Equality Act 2010, the issues may be intertwined. The Tribunal must nevertheless ensure a proper comparison of relevant circumstances and consider realistic explanations for the treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 and Law Society v Kamlesh Bahl [2003] IRLR 640. Here the Tribunal considered the respondent’s explanation, found that only the claimant had been given the generic Nigerian profile, and was entitled to conclude that the profiling was because of her race. A benign intention did not provide a different reason for conduct that was because of race: Amnesty International v Ahmed [2009] ICR 1450.

3. The appeal against the extension of time was allowed. The discretion under section 123(1)(b) of the Equality Act 2010 is wide and must be exercised on the circumstances of the case. The Tribunal must consider significant relevant factors. The length of the delay, reasons for it and prejudice to the respondent will almost always be relevant: Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194. A good reason for delay is not a legal precondition to an extension, but the presence or absence of an explanation and its nature remain relevant. Merits and lack of prejudice may favour an extension but do not determine the balance.

4. The Tribunal considered the merits and found no prejudice to the respondent, but did not assess how late the claims were or the reasons for the delay. That omission was an error of law. There was no single clear answer on the extension, so the issue was remitted to the same Tribunal to reconsider. Both parties may give evidence on the time extension. The remaining grounds concerning the time decision were dismissed.

• Employment Appeal Tribunal: In [2026] EAT 118 , dismissed the appeal against the direct race discrimination findings and allowed the appeal against the just and equitable extension of time. Remitted the time issue to the same Tribunal for reconsideration, with the parties permitted to give evidence.
• Employment Tribunal: Following a hearing in February and August 2023, judgment dated 15 December 2023 and sent on 3 January 2024, upheld three related complaints of direct race discrimination and extended time for them. It dismissed the claimant’s other complaints.