Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary
Must an employment tribunal consider the position of different Respondents separately when considering an extension of time?
Yes, held the EAT in Harden v Wootlif.
An employee bought various claims against his employer, including direct discrimination and detriment for making a protected disclosure. He also brought claims of harassment against both his former employer and against Mr Harden, the chairman of his former employer. These harassment claims were presented out of time.
The employment tribunal had to consider whether it was just and equitable to extend time under the Equality Act 2010, section 123(1)(b). The Employment Judge held that the determinative factor was the balance of prejudice. She held that the harassment claims could proceed against both Respondents as they added little to the remainder of the Claimant's claims and, that allowing the harassment complaint to proceed would add nothing to the preparation of proceedings as a whole because the fact finding employment tribunal would be bound to consider the issue as background in any event.
Mr Harden appealed. He contended that his interests should have been considered separately from that of the company which employed the Claimant. The considerations which the Employment Judge had taken into account did not apply to his circumstances.
The EAT agreed. His case could be distinguished from that of the company. He faced no other claim than that of harassment, whereas the company was subject to a number of claims. In circumstances where different considerations were in play in relation to each Respondent, the Employment Judge should consider whether to extend time on a just and equitable basis in respect of each separately.
Therefore Mr Harden's appeal was allowed. The justification for considering it just and equitable that the harassment allegations might be heard late, namely that the background would be relevant to "the remainder of the Claimant's claims", did not apply to the single claim against Mr Harden.