Can a Respondent overturn a tribunal judgment on liability by raising a time point at a later remedy hearing?
No, held the EAT in Wilson Barca LLP v Shirin.
The Claimant worked at a solicitors practice, she resigned after being subjected to harassment and abusive behaviour including being called a "stupid ****", and other insults unrelated to protected characteristics. The tribunal upheld four allegations of age-related harassment and two that were sex-related in a liability-only judgment, holding that the Claimant's resignation was not related to a discriminatory act.
A remedy hearing followed 10 months after the liability judgment was issued. Only at the remedy hearing did the Respondent raise the issue of time points going to jurisdiction, without either appealing the liability judgment, or seeking reconsideration of it. The Respondents argued that the six acts of harassment upheld in the liability judgment were out of time, and as the Claimant hadn't sought an extension of time for them to be heard, there was no jurisdiction to hold a remedy hearing for those complaints.
The EAT rejected the appeal, the liability judgment itself had not been appealed, nor had the Respondents sought reconsideration of it. The liability judgment remained in force and was res judicata. To refuse to allow a remedy judgment to be made was incompatible with the continued existence of the liability judgment. It was misguided to put the onus on the Claimant to have applied for an extension of time.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.