Maternity / pregnancy discrimination: EAT holds that ET’s “confused” reasoning and “complete failure to get to grips with the chronology” renders unsafe its refusal to extend time

The EAT has handed down its reasoned judgment in Thompson v Ark Schools.

Mrs Thompson, an Australian national, was recruited as a teacher in the UK. Mrs Thompson subsequently learned she was pregnant and upon advising Ark Schools, her job offer was withdrawn. Having sold the family home in preparation for her move, and after a high-risk pregnancy involving extensive medical treatment, Mrs Thompson and her family (by then including three young children) subsequently emigrated to the UK at which point she presented a complaint of maternity / pregnancy discrimination. This was not brought until some six months after the expiry of the primary limitation period (s.123(1)(a) EqA).

At a PH, at which Mrs Thompson represented herself, her claim was struck out by the Central London ET, the ET refusing to extend time under its just and equitable jurisdiction.

In a unanimous judgment the EAT (HHJ Eady QC presiding) allowed Mrs Thompson’s appeal. The EAT comprehensively rehearsed the law concerning extension of time under s.123(1)(b) EqA, summarising the position as follows:

“42. Whether it is appropriate to extend time on just and equitable grounds is a matter of assessment for the ET; it is not for the EAT to substitute its view. Where an ET has expressly directed itself as to the relevant legal principles, the EAT should be slow to infer that it has then failed to apply those principles. Moreover, the EAT should not finely comb through the ET’s reasoning to find fault or omissions, and should not pick out particular infelicities of expression, or focus on those, when the reasoning as a whole demonstrates that the ET applied the correct legal test. That said, where an ET has materially misdirected itself on the facts, that will render the decision unsafe: it will have failed to take into account that which is relevant (the actual facts of the case relevant to the ET’s assessment) or it will have had regard to something that is irrelevant (a mistaken view of the facts).

Applied to the reasoning of the ET, in the present case the EAT concluded that:

“47…The impression given from the ET’s findings is that it confused the order of events. It certainly appears to have lost sight of the precise chronology and the very short timeframe involved.

“49…[The ET] demonstrated a complete failure to get to grips with the chronology that followed, apparently misunderstanding the history of the events with which it was concerned.”

It followed that:

“50. In our judgement, these matters render the ET’s decision unsafe. They demonstrate errors in the factual findings made by the ET on matters which it expressly identified as being relevant to its determination. Those misunderstandings meant that the ET failed to take into account that which was relevant and had regard to that which was not. In those circumstances, it is right that we allow the challenge to this ET’s decision. In reaching this conclusion, we note that this was an unusual case with an unusual factual matrix. It required careful attention to the relevant dates and a clear explanation of its findings and conclusions. Unfortunately, the ET’s Judgment does not demonstrate the necessary engagement with the facts or clarity of explanation required.

The judgment is a reminder of the fact-sensitive nature of an ET’s exercise when considering applications to extend time. It is unclear whether or not the ET’s errors were a product of the four-month delay between the PH and the production of its written reasons.

David Mitchell, instructed by the Equality and Human Rights Commission, acted for Mrs Thompson.

A copy of the judgment is available here.

19th October 2018