Owen v Network Rail Infrastructure Ltd [2023] EAT 106

Appeal against a decision not to extend time for the Claimant to challenge the outcome of her unsuccessful grievance. Appeal allowed.

The Claimant claimed that she was subjected to numerous incidents of conduct on the part of a number of male colleagues, that amounted to direct discrimination because of sex, and/or harassment by way of unwanted conduct related to sex or of a sexual nature. The period in question was from November 2015 to May 2017 at which date she went off sick. She subsequently, in November 2017, raised a grievance which did not uphold her complaints. She brought proceedings to the ET in June 2020 following an unsuccessful appeal against the outcome of her grievance. The first 25 matters on the Scott schedule related to the alleged incidents during the period up to when the Claimant went off sick in May 2017. The remainder, numbered 26 - 34 in the Scott schedule, related to the period from November 2017 to February 2020. The ET said that the first 25 allegations were out of time, and it was only if they could be linked to the remaining allegations to form a continuing act of discrimination that they would be deemed to be in time and give the ET the jurisdiction to consider them. The ET concluded that claims 26 - 34 were not made out and therefore there was no continuing act of discrimination which could bring items 1 - 25 of the schedule in time. It also said that the Claimant had not provided any evidence on which it could exercise its discretion to extend time and dismissed her claims. The Claimant appealed.

The EAT allowed the appeal. In considering whether to grant a just and equitable extension of time in relation to Equality Act 2010 complaints, the ET erred in law in its approach. In particular, it considered that, if no explanation or reason for the late submission of the ET claim could be found in the evidence, this necessarily meant that an extension of time should be refused, as opposed to that being a relevant, but not necessarily decisive, consideration to weigh in the balance.


Published: 25/08/2023 13:50

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