Cartamundi UK Limited v Mrs P Worboyes UKEAT/0096/09

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Edwards Duthie Shamash advised Mrs. Worboyes in a three year legal battle which culminated in the Employment Appeals Tribunal ruling on a new point in English Law. The ruling upheld a Judgment in the Employment Tribunals case heard in 2008 that out of time complaints by way of background evidence are of relevance in determining timeous complaints of discrimination/victimisation.

The appellant employer appealed against findings of direct racial discrimination and victimisation made against it on a complaint by the respondent employee.  Mrs. Worboyes alleged that a colleague had directed a racist and derogatory comment towards her. Following that, she complained of a lengthy sequence of events during which her relationship with this colleague deteriorated and during which she raised allegations of racism by her colleague with various senior colleagues and brought various grievances, none of which were upheld. Ultimately, both the Claimant and her colleague were demoted and had their rates of pay reduced identically.

Mrs. Worboyes presented an ET1, making 15 separate complaints of discrimination and victimisation. Edwards Duthie Shamash assisted and advised Mrs. Worboyes with the prepartion of this case once a hearing had been listed, and she had been prior to this time preparing the case herself. The Tribunal ruled that nine of them, including the racist comment, were out of time but found that the six live complaints were made out. Compensation was awarded in a remedy judgment which was not subject to appeal. The Tribunal found that the racial comment and Mrs. Worboyes’s failure to take action against her colleague for the comment were facts from which the Tribunal could infer less favourable treatment against Mrs. Worboyes on the grounds of her race. The employer submitted that (1) the Tribunal had made findings of unlawful discrimination in relation to two complaints which had been ruled to be out of time; (2) the tribunal had erred in failing to consider a comparator in respect of the extant victimisation claims based on the demotion of Mrs. Worboyes with a reduction in her hourly rate of pay.

It was finally held by the EAT that where acts done within time are related to acts done out of time the latter may inform the Employment Tribunal’s determination on the in time acts, although the out of time acts cannot give rise to an award of compensation. Thus it is legitimate for an Employment Tribunal to ask itself the reason why the employer acted as it did in answering both the direct discrimination and victimisation questions. The employer’s appeal was therefore dismissed.

Ola McGhee of the Edwards Duthie Shamash employment team acted for Mrs. Worboyes with the defence of the appeal.