Once a tribunal has found that an employer is liable for a claim at the liability hearing, it may then award damages at the subsequent remedy hearing. In Wilson Barca LLP and ors v Shirin, the Employment Appeal Tribunal (EAT) held that an employer cannot raise a point about time limits for the first time at the remedy hearing if they had not already raised it at the earlier liability hearing.
Ms Shirin was employed as a paralegal/office assistant with a firm of solicitors called Wilson Barca LLP on 2 November 2015.
She resigned on 1 June 2016 after just seven months of employment and claimed she was constructively dismissed and that the dismissal was discriminatory. She also claimed that she had been bullied and subject to harassment related to age, sex and race by the senior partner, Mr Barca and his secretary, Ms Rajananth.
In their response, the firm denied the allegations. Although it accepted that Mr Barca had shouted and sworn at Ms Shirin, it defended the claim by arguing that he shouted and swore at all his staff and even at clients.
The tribunal upheld four of Ms Shirin’s claims of unlawful harassment on the ground of age and two allegations of unlawful harassment on the ground of sex but dismissed her claim of discrimination on the basis that Mr Barca treated everyone badly.
Ten months later, on the first day of the hearing to decide what remedy should be awarded, the firm argued for the first time that all six of the upheld allegations had been brought outside the statutory time limit. The firm claimed that as Ms Shirin had not made an application to extend time, the tribunal did not have jurisdiction to award any damages.
The tribunal found that it would have been inequitable to deny Ms Shirin a remedy on the basis that she was out of time because her claim for constructive dismissal was held not to be discriminatory. In any event it considered that there was no prejudice to the firm and it was just and equitable to extend time. It therefore awarded her compensation for injury to feelings plus aggravated damages in respect of the harassment on the ground of sex.
One of the grounds of appeal was that the tribunal’s decision to extend time at the remedy hearing was an error of law.
The EAT rejected the firm’s argument on the time issue, holding that this was based on an erroneous premise – namely that Ms Shirin should have applied to extend time once her former employers had raised the issue at the remedy hearing.
As the issue had already been decided by the tribunal and was now “res judicata” (meaning a matter already adjudicated), the firm could not now try to overturn the decision made in the liability hearing. It also noted that Wilson Barca LLP had not appealed the liability judgment. The finding of unlawful harassment therefore stood.
The EAT also noted that the effect of allowing the appeal would be that no compensation would be awarded and that this would be incompatible with the liability judgement. In any event, the EAT made clear that it would have upheld the tribunal’s decision to extend time in these circumstances, had it been necessary to do so.
However, it upheld the appeal against the amount of compensation awarded on the basis that the tribunal’s reasoning was insufficient to explain the amount of the award. The assessment of compensation was therefore remitted to the same tribunal for redetermination.
In tribunal cases where liability and remedy are to be determined at separate hearings this case makes clear that employers cannot raise time limit issues after the liability hearing.