When considering whether to extend time in a claim of harassment, the EAT has held in Secretary of State for Justice v Johnson that tribunals must make specific findings in the first instance to be able to determine whether the alleged conduct constituted harassment. They should also specify in the findings of fact when the alleged conduct was said to have occurred and when it ended.
Mr Johnson’s union, the POA, instructed Thompsons to act on their member’s behalf.
Basic facts
Mr Johnson, who had been a prison officer since 1990, attended a distressing scene in October 2011 of a prisoner who had been murdered. On 20 February 2013, he applied for ill-health retirement (IHR) because he felt under pressure from his employer to do so. He acknowledged that once he submitted the form, the prison service did not do anything more to force him to continue with it, although the original pressure put on him to make the application continued in some way until a decision was reached.
On 19 December 2013, Mr Johnson lodged a tribunal claim form alleging that he had been pressurised into completing the application. For its part, the prison service argued that Mr Johnson’s attitude to an IHR application changed over time from an initial period in 2012 and part of 2013 when he was opposed to the idea; to a period starting in early September 2013 when he accepted (following advice he trusted) that it was in his own interests to do so. Since harassment relates only to unwanted conduct, the prison service argued that the only acts about which he could complain were in the earlier period and, as he did not submit his tribunal claim until December, he was therefore out of time. The claim was heard at the employment tribunal in February 2020 having been stayed until 2019.
Tribunal decision
The tribunal held that Mr Johnson should not be penalised for trying to resolve matters internally in the first instance, which he had attempted to do. Given that it has a discretion under section 123 of the Equality Act 2010 to extend time, it held that the claim should continue, particularly as the delay was a short one.
In terms of the actual claim itself, the tribunal agreed with Mr Johnson that he had been harassed by virtue of “being compelled to complete an ill-health retirement assessment application (after expressing the fact he did not want medical retirement)”.
The prison service appealed against the decision to extend time.
EAT decision
Allowing the appeal, the EAT held that the tribunal should have made specific findings about the conduct that was alleged by Mr Johnson to constitute harassment, and whether it continued beyond February 2013 (when he submitted the application) until September (when he accepted that he was no longer being harassed). It should also have specified when the conduct on the part of the prison service was said to have occurred and when it ended. It was only at that point that the tribunal should have gone on to determine whether it was just and equitable to extend the usual three-month limit.
The employment tribunal was also wrong to hold that it only had to take account of the period by which the claim form exceeded the usual three-month limit as it should also have considered the ability of the prison service to defend the claim, including the fact that it would result in the tribunal having to make determinations about matters that had occurred many years previously.
It remitted these matters to the same employment tribunal for reconsideration.