In Concentrix CVG Intelligent Contact v Miss D Obi the employment tribunal found that the claimant had been sexually harassed by her line manager on three separate occasions. It went on to find that these three incidents amounted together to conduct extending over a period, and accordingly time for presenting a complaint to the tribunal in respect of all of them ran from the date of the last incident. Calculating limitation in that way, these complaints had been presented one day out of time. The tribunal decided it was just and equitable to extend time.

The respondent appealed in respect of the decision to extend time. The issue was whether sufficient consideration had been given to the prejudice that the employer might face in defending the late claim.

The three incidents had taken place between November 2017 and January 2018. The employer argued that it would be particularly difficult for it to answer these allegations given the time that had passed since the earlier incidents, and Miss Obi had not provided any good reason that the claim had not been presented in the appropriate time limit.

The Employment Appeal Tribunal allowed the employer’s appeal.

It was held that the employment tribunal in focusing on the claim being only one day outside the time limit had failed to take into account the fact that the incidents had taken place over a long period that extended back over three months.

As a result of the time that had lapsed since the earlier incidents had taken place, it had to be considered that the memories of witnesses were more likely to have faded and so they might not be able to give evidence.

In these circumstances allowing for the claim to be presented could prejudice the employer’s ability to defend the claim.