After a brief break, your case law update returns and will resume normal service of weekly updates henceforth (cheers/groans). Going all the way back to May, our last case law update looked at tribunal procedure, specifically dismissing a claim and awarding costs in the event a party does not attend the hearing. Whilst we have not had a case law update for a while we have still done regular COVID blog posts including an update on the end of the furlough scheme.
At a remedy hearing can a party raise a limitation issue to overturn the employer’s liability?
Ms Shirin, the Clamant, was a 50 year old paralegal for Wilson Barca LLP, the First Respondent, a law firm specialising primarily in family law. The Second Respondent, Richard Barca, was a senior partner at the First Respondent. There was also a Third Respondent, Rajananth, the Second Respondent’s secretary.
The Claimant resigned after 7 months’ employment with her employment terminating on 30 June. The Claimant cited a mental breakdown as a result of bullying and harassment throughout her employment with the First Respondent. The bullying and harassment alleged included being called the following choice words (warning explicit language!):
- Fucking stupid
- Stupid cunt
- Stupid cow
- Too old for your job
The Claimant alleged the Second and Third Respondents would often shout the above phrases to her on a daily basis. The final incident on 1 June was when the Second Respondent called the Claimant “fucking stupid”.
The Claimant presented an ET1 form on 10 October. The claim included harassment and direct discrimination resulting in dismissal as the Claimant did not have the requisite service for a traditional unfair dismissal claim.
At hearing the Employment Tribunal heard evidence on the character of the Second Respondent and held he had a volcanic temper that could erupt into torrents of abuse. The ET also held that this behaviour was directed at everyone, regardless of the age, gender or any other protected characteristic.
Because of the above, the claim of harassment succeeded as the Claimant had been made to feel degraded as a result of the Second Respondent’s conduct. However, the direct discrimination claim for dismissal was not held as the Second Respondent treated everyone in this manner. A classic example of the bastard’s defence succeeding in a discrimination claim – the perpetrator does not discriminate he is an absolute bastard to everyone. The Claim proceeded to a remedy hearing.
At the remedy hearing, 10 months after the liability hearing, the Respondents tried arguing that as the claim was brought based on the time limits flowing from termination on 30 June, the Claimant’s harassment claims were out of time and thus not due a remedy. The Second Respondent’s final act, calling the Claimant fucking stupid was also not related to a protected characteristic (although is perhaps indicative of a sexist attitude). This point was not raised during the remedy hearing or in any preliminary hearings.
The Respondents also did not apply for an appeal or reconsideration of the liability judgment on this point. The ET held that the point was relevant to liability, not remedy. It went on to award the Claimant over £30,000.00 in injury to feeling and interest. It also held that, given the harassment and mental breakdown alleged, it would have been just and equitable to extend the Claimant’s limitation period to October from the last act of harassment. This was despite the Claimant not applying for an extension.
The Respondents appealed but the EAT rejected the appeal. It held that as the Respondents had not raised the point prior to remedy, had not appealed or reconsidered the liability judgment and that the ET had justly extended the Claimant’s limitation period, it was only right for the ET to proceed to remedy and make an award.
The takeaway point:
No, any points relating to liability should be raised at or before liability is assessed. If not, the employer should promptly apply for the liability judgment to be appealed or reconsidered. Raising a limitation issue ten months after the liability judgment is too little too late, particularly when the Respondents are in the legal profession!
Despite being legal professionals, the Respondents’ appear to specialise in family law. Perhaps instructing an employment specialist would have served them well as the potential limitation issue might have been spotted sooner. However, as the ET held, it is likely the Claimant would have been granted an extension of time based on the impact of the Second Respondent’s conduct on her mental health.
A reputational point, the Respondent might have been minded to settle the claim to prevent a public record that a senior partner has a volcanic temper that results in torrents of bad language including liberal use of the word cunt. Settlement would have prevented this from becoming public knowledge and is an example of why sometimes settlement is a good option. Again, had the Respondent instructed separate solicitors, it might have removed the personal element of the claim which can sometimes hinder settlement decisions.