Employment lawBy Martin Edwards, Mace & Jones, LiverpoolDiscriminationHome Office v Coyne (2000) IRLR 838This split decision of the Court of Appeal illustrates that the question of when to draw an inference of discrimination remains, in some cases, difficult to answer.The majority of the Court of Appeal decided that a tribunal had erred in finding that an instructional officer at Holloway Prison suffered sex discrimination when her complaint of sexual harassment was not dealt with properly.Although she was thereby subjected to a detriment, she then had to show that the employers, in handling her complaint, treated her less favourably than they would have treated a man in similar circumstances.

On the facts, there was no material from which to infer that the way in which her complaint was processed was discriminatory.

The fact that the harassment was treated as being her fault could not, on the facts as found by the tribunal, be related to her sex as opposed to her relations with some of her colleagues at work.Dissenting, Lord Justice Sedley said that the tribunal had been entitled to draw the inference that the applicant was treated less favourably than a man would probably have been in such a situation, because a man would not have been blamed in the way she had been for being subjected to certain indecent gestures.

But for the fact that she was a woman, the applicant would not have found her complaints being neglected on the explicit assumption that she had only herself to blame for her difficulties.The editor of the IRLR suggests that the dissent is persuasive, even though unreasonable management does not necessarily equate to discriminatory management.Time limitsRobinson v Post Office (2000) IRLR 804 The Employment Appeal Tribunal (EAT) upheld a tribunal's ruling that it was not just and equitable to extend the time limit for presenting the applicant's disability discrimination complaint in respect of his dismissal, notwithstanding that his complaint was out of time because he was pursuing an internal appeal against dismissal.

The decision in Aniagwu v London Borough of Hackney (1999) IRLR 303, did not establish a broad proposition such that wherever and so long as there is an unexhausted internal procedure, then delay to await its outcome necessarily furnishes an acceptable reason for delay in the presentation of a discrimination complaint.

When delay on account of an incomplete internal appeal is relied upon as a reason for failing to lodge a tribunal claim in time, it will ordinarily suffice for the tribunal to put this into the balance when the justice and equity of the matter is being considered.

In the present case, the tribunal plainly took note of the fact that the employee was minded to pursue his appeal rather than launching proceedings, but there were competing considerations to be balanced.

These included his knowledge of the time limit and his decision to ignore his union's advice about it, as well as the fact that he was able to look after his own affairs and had done so in respect of the internal appeal.

It was for the tribunal to decide what weight to attribute to the various matters.

The president of the EAT highlighted the moral of the case: 'As the law stands, an employee who awaits the outcome of an internal appeal and delays the lodging of an IT1 must realise that he is running a real danger.

Far better, therefore, if any delays are encountered and the three months is beginning to threaten to be ended, that the IT1 should be lodged and the sort of sad conclusion that has overtaken Mr Robinson should be avoided in other cases.'l The case of Anglo Group plcv Winther Browne & Co Ltd, which was described in the last IT law legal update (see [2001] Gazette, 18 January, 40), has beenreported in the Construction Law Reports, vol 72, 118.