The Claimant made claims of harassment several years after 2 incidents where one colleague wore blackface at a work event and at another event, a colleague made a racist joke. The ET concluded that the blackface conduct did not have the purpose of violating the Claimant’s dignity which was not challenged in the appeal. In analysing the purpose of the conduct the ET had regard to the difficulties caused by the passage of time. However, it was accepted by the Respondent that the conduct occurred and constituted harassment because it had the effect of violating the Claimant’s dignity. The ET also determined the joke complaint on the basis of effect rather than purpose. However, the ET dismissed the complaints as they were out of time. The Claimant appealed.

The EAT allowed the appeal. The ET decided that it could properly determine the complaints but then refused to extend time in substantial part because of prejudice that it suggested resulted from the delay. The EAT concluded that there was no real relevant prejudice identified by the ET and that its analysis was perverse.