The claimant was employed by the respondent as a paralegal. She had actually been called to the Bar in 2016 shortly after her 50th birthday but she had already decided to take up employment in a solicitor’s practice.  She had been in the position for six months before she resigned following a mental breakdown which the claimant stated was due to continuous bullying and harassment by the second and third respondents who were the senior partner and the senior partner’s secretary respectively.  She cited being regularly told that she was ‘stupid’, was sworn at and told that she was too old for the job.   She brought claims of harassment and discrimination to the Tribunal.

At first instance, it was held that the respondent was liable for unlawful harassment on the grounds of age and sex.  Some other claims, such as direct discrimination were dismissed.  The issue in the appeal arose at the Remedy Hearing.   At this hearing, the Respondents outlined that the Claimant’s case had been brought out of time.  This was the first time that this assertion had been made.  Indeed, the effective date of termination for the claimant was 30th June 2016 and the ET1 was not received until 10th October 2016 following unsuccessful conciliation.   The claimant did not address the Tribunal on the issue of time at the remedy hearing nor did they request for time to be extended.  However, the Tribunal held that it was just and equitable to extend time citing that it would be inequitable to deny the claimant the claim after it had already been decided. She was awarded compensation totalling £46,908.38 for, inter alia, injury to feelings and aggravated damages.

At the EAT, the respondents again asserted the time issue that had been brought up at the remedy hearing.  This was rejected.  It was held that the issues determined within the liability judgment were res judicata and that as they never attempted to overturn the liability judgment they could not seek to do so through the backdoor. Accordingly, there was no requirement for the claimant to make an application to extend time and in any event the EAT would have allowed for the extension of time on the facts.

The respondent also appealed the level of compensation awarded.  This was successful with the EAT citing that there had been a failure by the Tribunal to outline injury to feelings was assessed at £10,000 for each incident and also the requirement for £5,000 for aggravated damages.   There needed to be an assessment of the extent the ‘aggravating conduct’ aggravated the injury as noted in HM Prison Service v Salmon.  Accordingly, the remedy was set aside with the case remitted back to the Tribunal for fresh consideration.

Practical Lessons

The primary lesson that comes from this decision is for respondents to be on top of the time limits and assert it from the outset.   It is astonishing that the respondents in this case were a legal firm and the time limit issue was not raised until the hearing had been and gone.    There may have been a different result but once the liability issue had been addressed it made it much easier for Tribunal to state that they would be compelled to extend time (even though they did not need to delve into those points). 
https://www.gov.uk/employment-appeal-tribunal-decisions/wilson-barca-llp-and-others-v-ms-m-shirin-ukeat-0276-19-ba