St Helens MBC v Derbyshire & Ors

Victimisation law protects employees who pursue statutory claims, but it does not prevent an employer from defending or seeking to settle pending protected litigation. The inquiry remains whether the claimant received less favourable treatment, suffered detriment, and was treated that way by reason of the protected act. These issues are interlinked. An honest and reasonable attempt to protect the employer’s litigation position, including a compromise proposal, falls within the permitted latitude. The mere wish to avoid adjudication is insufficient to establish victimisation. A tribunal must assess the particular conduct and its surrounding circumstances.

Female catering employees brought equal pay proceedings against their local authority employer. Most claims settled, but 39 employees continued their claims. Shortly before the hearing, the authority sent letters to all catering staff and separate letters to the remaining claimants warning of possible service closure, increased meal costs and redundancies, and urging settlement.

A fresh employment tribunal unanimously upheld complaints of victimisation under the Sex Discrimination Act 1975. The Employment Appeal Tribunal dismissed the authority’s appeal: [2004] IRLR 851. The central issue before the Court of Appeal was whether the authority’s conduct was protected litigation conduct or treatment by reason of the employees’ protected equal pay proceedings.

The appeal was allowed by a majority comprising Jonathan Parker and Lloyd LJJ. The case was remitted to the Employment Tribunal for fresh determination. Mummery LJ dissented and would have dismissed the appeal.

1. The Council was given permission to amend its grounds so that all alleged errors in the tribunal’s construction and application of the victimisation provisions could be considered.
2. Under section 4 of the Sex Discrimination Act 1975, the statutory elements form an integrated inquiry. The relevant comparators were employees who were not bringing equal pay proceedings at the relevant time, including employees whose claims had settled. The tribunal’s findings that the remaining claimants received less favourable treatment and suffered detriment were findings it was entitled to make.
3. Detriment is not confined to physical or economic consequences. Distress, fear, threat and intimidation resulting from direct communications can amount to detriment. The majority accepted that the letters were capable of producing such consequences.
4. However, Cornelius v University College of Swansea [1987] IRLR 141 and Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 establish that an employer may take honest and reasonable steps to protect its position in pending protected proceedings. That latitude includes an honest and reasonable attempt to compromise the proceedings. The mere fact that the employer seeks to avoid adjudication does not, by itself, constitute victimisation.
5. The tribunal had treated the Council’s wish to secure abandonment of the claims and the continuance of the proceedings as sufficient. It had not separately determined whether the particular means adopted were honest and reasonable. Its findings on less favourable treatment and detriment did not answer that question. The error might have affected the result, so the matter was remitted.
6. Mummery LJ considered that the tribunal had properly assessed the Council’s reason by looking at the letters, their timing, the direct approach to individual claimants and the surrounding circumstances. In his view, the Council went beyond reasonable means of protecting its litigation interests and the appeal should be dismissed.

• Court of Appeal (Civil Division): By majority, allowed the Council’s appeal from the Employment Appeal Tribunal and remitted the case to the Employment Tribunal. Mummery LJ dissented.
• Employment Appeal Tribunal: On 23 July 2004, dismissed the Council’s appeal from the fresh employment tribunal: [2004] IRLR 851.
• Fresh employment tribunal: Unanimously upheld the employees’ victimisation complaints.
• Earlier employment tribunal and Employment Appeal Tribunal proceedings: The initial tribunal majority dismissed the complaints; the employees successfully appealed in November 2002, and the matter was remitted for rehearing.