Butt v City of Bradford Metropolitan District Council

In a victimisation claim, the claimant must show less favourable treatment because he or she carried out a protected act. The comparator must reflect the claimant’s actual circumstances, including a notice period where that is material. An employer may choose to provide a reference to an employee who is an adversary in litigation; Khan does not require refusal of a reference or an inquiry into whether the employee would have been better off without it. Findings that statements were honestly made and unrelated to the protected act defeat the claim, even if their accuracy or the propriety of suspension is disputed.

The applicant had been employed by the respondent as an employment adviser and had made prior race-discrimination complaints protected under the Race Relations Act 1976. After resigning to take another post, he was suspended during his notice period. Former managers then provided information to the prospective employer, which withdrew its offer.

An employment tribunal dismissed the victimisation claim, finding that a comparable employee would have been treated similarly and that the information was not given because of the protected acts. The Employment Appeal Tribunal, presided over by Burton J, dismissed a challenge under rule 3.10 of the EAT Rules 1993. The applicant sought permission to appeal, alleging misapplication of Khan, bias, improper suspension and inaccurate information.

Lord Justice Keene dismissed the application for permission to appeal and refused the request for a copy of the judgment at public expense.

1. The Employment Appeal Tribunal had jurisdiction only to correct errors of law. It was not entitled to second-guess the employment tribunal’s findings of fact. The findings that the managers had acted professionally and that their conduct was unrelated to the applicant’s protected acts were open to the tribunal on the evidence.
2. The decision in The Chief Constable of West Yorkshire v Khan [2001] ICR 1065 was misunderstood. It recognised that an employer might appropriately decline to provide a reference where the parties had become adversaries in litigation. It did not require an employer to refuse a reference, nor did it impose an obligation to determine whether the employee would be better off without one. The latter was a factual observation concerning that case.
3. Where the alleged less favourable treatment consists of failing to investigate a suspension, the proper comparison must be with an employee who had resigned and would leave within a month, not with an ordinary continuing employee. On the tribunal’s findings, any investigation would have been futile because the applicant would have left before it was completed.
4. Arguments that the information was inaccurate, or that suspension should not be used as punishment, could not establish victimisation. The applicant had to show less favourable treatment because he had done a protected act, and that causal requirement was not satisfied.

• Court of Appeal (Civil Division): On 11 August 2005, dismissed the application for permission to appeal and refused a copy of the judgment at public expense.
• Employment Appeal Tribunal: On 12 May 2005, Burton J dismissed under rule 3.10 of the EAT Rules 1993 the challenge to the ruling that the notice of appeal disclosed no reasonable grounds.
• Employment tribunal, Leeds: Dismissed the applicant’s claim of victimisation.