Can a tribunal decline to exercise its s.123 (1)(b) just and equitable discretion if it has made material errors in assessing the facts and explaining its reasons?

No, held the EAT unanimously on the facts in Thompson v Ark Schools.

Mrs Thompson brought complaints of unlawful pregnancy and maternity discrimination following the withdrawal of a job offer in February 2016. She issued her claim on 8 November 2016. During this interval she endured a series of physical and mental health issues. She was an erudite and resourceful woman but had been “floored” by depression.

The EAT held that the tribunal’s reasoning was confused. There were material errors in its understanding of the chronology of events including, significantly, that on consulting the CAB and learning that there was a discretion to extend time Mrs Thompson commenced ACAS Early Conciliation on the very same day, 12 October 2016.

In an unusual case with an unusual factual matrix, the tribunal’s errors in reasoning and its factual findings rendered the decision unsafe. The EAT found that the tribunal had suffered a “complete failure to get to grips with the chronology”. The case was remitted to a new tribunal.

Written by Karen Jackson

This blog first appeared in Daniel Barnett’s Employment Law Bulletin.