Bakshi v Consignia Plc & Anor

Victimisation requires detrimental treatment because the claimant previously asserted, or engaged in activity concerning, the right not to be discriminated against. A fresh detriment arising from recent correspondence may be in time, but the claimant must show a causal connection between that detriment and the earlier protected activity. Strong suspicion, the history of the dispute, or proof that a later claim was handled wrongly is insufficient. The connection must be established by evidence making it clear, or from which it is proper to infer, that the detriment occurred because of the earlier assertion. Where that essential element is unlikely to be proved, the claim may be treated as misconceived.

The applicant had previously brought unsuccessful sex and disability discrimination claims against her former employer. After learning that a fellow employee had been offered medical retirement benefits, she issued a further claim alleging that the refusal of ill-health benefits and subsequent correspondence constituted victimisation contrary to the Sex Discrimination Act.

The Employment Tribunal held the claim misconceived. It considered the claim against the pension trustees outside the tribunal’s jurisdiction and the claim against the employer too remote in time, while treating the later refusal of benefits as incapable of founding victimisation. The Employment Appeal Tribunal dismissed her appeal at a preliminary hearing. She applied to the Court of Appeal for permission to appeal.

Application for permission to appeal refused.

1. Nature of victimisation. Lord Justice Sedley held that victimisation involves detrimental treatment because of the claimant’s previous assertion of the right not to be discriminated against, or previous activity in connection with that right.
2. Causation. Even assuming that the later errors alleged in the handling of the applicant’s pension claim could amount to a fresh detriment and that the other objections could be overcome, the applicant had to show that those errors were a reprisal for her earlier assertion of rights. It was insufficient for her to feel strongly that this was the explanation or merely to demonstrate the history of the dispute. Evidence had to make the causal connection clear or permit a proper inference that the detriment occurred because of the earlier protected activity.
3. Time limits. The court accepted that repetition of an act of discrimination starts time running afresh. The application, however, was presented as a fresh act of victimisation rather than as a repetition of the earlier discrimination. The decisive difficulty was therefore the absence of a realistic prospect of proving the required causal link.
4. Costs. The risk that an unsuccessful appeal could expose the applicant to substantial costs was not itself a reason to refuse permission where an appeal was otherwise well-founded. It was relevant to the court’s concern that permission would serve no proper purpose where the appeal appeared likely to fail and could cause financially ruinous liability.

The court expressed sympathy for the applicant’s underlying grievance but could not reopen the earlier proceedings or rewrite the procedural history. Permission to appeal was refused, and a transcript was to be supplied to her at public expense.

• Court of Appeal (Civil Division): On 21 November 2002, Lord Justice Sedley refused permission to appeal.
• Employment Appeal Tribunal: On 29 July 2002, the EAT dismissed the applicant’s appeal at a preliminary hearing without a full hearing on notice to the respondents.
• Employment Tribunal: On 20 August 2001, the Tribunal held the victimisation application misconceived. It considered that the pension trustees were outside its jurisdiction and that the employer-related complaints could not establish victimisation.