Victimisation in the workplace is back on the agenda. In the recent decision in St. Helens Metropolitan Borough Council v Derbyshire and others the Court of Appeal overturned the decision of both the tribunal and the EAT which had held that letters threatening job losses sent by the council to employees pursuing equal pay claims could amount to victimisation. The claim has been remitted back to the tribunal for a decision on its facts.
The case involved a claim made under the Equal Pay Act 1970 by female school catering staff who did not receive bonus payments, whilst male road sweepers did. The council settled the majority of the claims, however 39 ladies proceeded with their claims. Before the hearing, the council issued a letter to all the catering staff, including the claimants, stating that were the claims to succeed, it may result in potential job losses due to the severe financial consequences. The letter not only upset the claimants, but made life difficult for them at work. As a result, they brought additional claims of victimisation against the council.
Under the Sex Discrimination Act 1975, victimisation occurs if someone is treated less favourably by reason that he has carried out a protected act. One such protected act is the bringing of a claim under the Equal Pay Act 1970.
The council, however, argued that it issued the letters in the normal course of litigation, and that it was simply telling employees the truth.
Both the tribunal and the EAT found in favour of the claimants. The Court of Appeal took a different approach. They agreed that the tribunal had used the correct comparator to establish victimisation (i.e. someone who had not brought a claim). They also agreed that the claimants had been treated less favourably when applying the comparator. That, however, is where the agreement ended.
In making its decision, the tribunal had distinguished the leading case of Chief Constable of West Yorkshire Police v Khan. The House of Lords in Khan held that as during litigation the employer and employee are part of an adversarial relationship, it would not be enough that the detriment would not have happened 'but for' the bringing of the claim. The tribunal should look behind any action to establish the real reason for it. In the case in question, the tribunal felt the facts were sufficiently different to justify a departure from the test in Khan, as the council was not merely trying to protect itself, but also to pressurise the claimants into settling their claims. Nonetheless, the Court of Appeal did not consider this action itself to amount to victimisation.
The Court of Appeal also found that the tribunal had failed to appreciate the distinction between the bringing of the claim (which is the protected act) and the continuance of the proceedings. The latter is not afforded the same protection, and the council was therefore entitled to take action as it would in the ordinary course of litigation. It remitted the case to the tribunal on these points.
However, before employers rush to the post box it should be borne in mind that the case will remain to be decided on another principle that can be drawn from Khan; namely that the employer must be acting "honestly and reasonably". A lot will rest on the tribunal's consideration of this duty, and whether or not it can be established. In agreeing to remit the case, Lloyd LJ expressed his opinion that it was by no means certain that the error by the tribunal had made a difference to the end result. To determine whether this is the case, the tribunal will have to consider many factors, in particular whether it was reasonable for the council to send letters to all employees as opposed simply to those bringing the claims.
In his dissenting opinion, Mummery LJ felt that the council's actions were not a reasonable means of protecting its interest in litigation. It will be interesting to see if the tribunal follows this argument. Either way, the remitting of the case should at least allow for the emergence of some guiding principles as to what could be considered "honest and reasonable" by an employer in such circumstances. For that reason, the new decision will be eagerly awaited.