HARASSMENT – Conduct
SEX DISCRIMINATION – Continuing act
JURISDICTIONAL POINTS – Extension of time: just and equitable
The Claimant’s complaints included one of harassment related to sex, by a colleague having sent an anonymous letter criticising her handling of a patient’s care, to five recipients. The Respondent’s case was that the sender acted solely from genuine concerns about the Claimant’s (alleged) conduct, and that his conduct was not in any way related to sex. The Claimant’s case was that that his conduct was because of sex (and therefore also related to sex) and that the other elements of harassment were satisfied. The Tribunal dismissed the complaint. In relation to three recipients it found the sender had acted reasonably and in accordance with his professional obligations. In relation to the other two, it found that he had not, and that his purpose in sending the letter to them had been to humiliate the Claimant. She argued on appeal that it was incumbent on the Tribunal to make further findings about his motivation in sending the letter to those two particular recipients. The Respondent disputed that and cross-appealed that the Tribunal had erred in finding the sending of this letter to be part of a continuing act. There was also a dispute about whether the Tribunal should have found that it was just and equitable to extend time.
Held:
(1). The effect of the Tribunal’s findings was to distinguish between the conduct in relation to the two groups of recipients, and to treat the sending of the letter to two of them as being of a different character. It was then incumbent on the Tribunal to consider separately whether the sending to those two recipients was or was not related to sex, and to give some further reasons about that. The decision was, in this respect, not Meek compliant.
(2). The contentions of the Claimant, that the burden of proof was bound to be viewed as having shifted and not been discharged, and of the Respondent to opposite effect, were both wrong. Consideration of the impact of section 136 of the Equality Act 2010, and/or of whether it was able to make a positive finding either way, without resort to section 136 (per Hewage v Grampian Health Board [2012] ICR 1054, SC) would be a matter for the Tribunal on remission.
(3). As conceded by the Claimant, the Tribunal erred in finding that there was a continuing act, when there was no discriminatory conduct within the primary time limit. As to the ‘just and equitable’ jurisdiction, the rival contentions that the Tribunal would be bound either to extend, or not to extend, time were both rejected. It would be a matter for the Tribunal on remission.
Citations:
[2019] UKEAT 0111 – 18 – 2301
Links:
Jurisdiction:
England and Wales
Employment
Updated: 14 June 2022; Ref: scu.635153
