Johnson and Johnson Medical v Fayokun: EAT upholds race discrimination findings but remits time issue

The Employment Appeal Tribunal has upheld an Employment Tribunal's findings that a pharmaceutical company's senior manager subjected an employee to direct race discrimination by attributing to her a generic Nigerian working profile and repeatedly linking her conduct to stereotypical national traits, while sending the separate question of whether the claims were brought in time back for fresh consideration.

In Johnson and Johnson Medical Limited v Tolulope Fayokun [2026] EAT 118, Marcus Pilgerstorfer KC, sitting as a Deputy Judge of the High Court, dismissed the employer's challenge to the substantive discrimination findings but allowed its appeal on the tribunal's decision to extend time for those complaints, remitting that issue to the same tribunal.

The claimant, who was born and raised in Nigeria before relocating to the UK in 2007, worked as a Senior Manager in Global Strategic Insights reporting to Alessandra Toro. The employment tribunal found that Ms Toro had carried out a profiling exercise in March 2018 that aligned the claimant with a generic Nigerian workstyle profile containing what the tribunal described as lazy stereotypes, including references to poor timekeeping. It found this profile was then used at a one-to-one meeting the following month, during which Ms Toro told the claimant that differences between their working styles explained why she had been "poking" her, and that the claimant possessed "Nigerian traits" which colleagues found difficult. The tribunal rejected Ms Toro's evidence that she had carried out similar comparisons with other nationalities, finding the claimant was the only person profiled in this way.

On appeal, the employer argued the tribunal had reached a perverse conclusion by recording that Ms Toro had "accepted" all three allegations, had given inadequate reasons for preferring the claimant's account of what was said, and had erred by failing to construct a hypothetical comparator or undertake any comparative exercise. The EAT rejected each argument. It found the tribunal's reference to acceptance related only to the fact that a profiling exercise had taken place, not to the disputed content of later conversations, and that the tribunal's brief but adequate reasoning permissibly drew inferences from primary facts that were largely undisputed, including Ms Toro's own acceptance in cross-examination that she had said she had been "poking" the claimant. On the comparator point, the judge confirmed established authority that tribunals are not required to construct a hypothetical comparator where they can properly focus on the reason for the treatment, and found no error in the tribunal's conclusion that the profiling exercise had been carried out because of the claimant's race.

The employer fared better on the question of time limits. The three discrimination findings had been presented outside the normal three-month limitation period, and the tribunal had extended time on a "just and equitable" basis, citing the significance of the profiling incident to the claimant's overall grievances and the absence of prejudice to the employer. The EAT held this was insufficient, finding the tribunal had failed to engage at all with the length of the delay or any explanation for it, factors the case law treats as almost always relevant to the exercise of that discretion. Rather than substitute its own decision, given no clear explanation for the delay had in fact been advanced, the judge remitted the time point to the same tribunal, allowing both parties to adduce further evidence on the question of a time extension.