Bird v Sylvester & Anor

In discrimination proceedings, strike-out is appropriate only where the claim is plain and obvious. Detriment is assessed primarily from the perspective of the alleged victim, applying the reasonable-employee standard. Honest and reasonable conduct in defending litigation or negotiating settlement will not normally constitute detriment. Under section 33 of the Race Relations Act 1976, knowingly aiding requires close involvement in the principal’s unlawful act. Advice, decision-making by the principal, and carrying out instructions do not suffice without more.

The appellant brought a first claim against her former employer alleging race discrimination. After that claim was dismissed, the employer applied for costs and proposed settlement terms including resignation and an undertaking not to appeal. The appellant then brought a second claim alleging victimisation by the employer and his solicitors.

The employment tribunal struck out the costs-related claim against the employer and all claims against the solicitors, while allowing the disciplinary-proceedings aspect against the employer to continue. The Employment Appeal Tribunal dismissed her appeal. The central issues were whether the costs conduct could constitute victimisation and whether the solicitors had knowingly aided the alleged disciplinary victimisation.

1. Appeal dismissed. The costs-related victimisation claim against the employer was properly struck out.
2. Detriment was assessed from the perspective of a reasonable employee. Honest and reasonable conduct in defending litigation or negotiating settlement would not normally constitute detriment. The costs application and settlement proposal were proper and reasonable, leaving no viable basis for victimisation.
3. Under section 33 of the Race Relations Act 1976, knowingly aiding requires close involvement in the principal’s unlawful act itself. Advice which merely assists the principal in deciding what to do is not, without more, aid in carrying out the resulting act.
4. The decision to commence disciplinary proceedings was solely the employer’s. The solicitors’ advice and execution of instructions did not make them participants or aiders.
5. The court rejected the wider proposition that a solicitor can never incur liability. Active promotion of oppressive conduct might suffice. Objective legal advice given in good faith and followed by action on the client’s instructions would ordinarily not.
6. The disciplinary claim against the employer remained outstanding. The strike-out of the claims against the solicitors was upheld.

• Court of Appeal (Civil Division): appeal from the Employment Appeal Tribunal dismissed.
• Employment Appeal Tribunal: appeal from the Manchester Employment Tribunal dismissed.
• Manchester Employment Tribunal: struck out the costs-related claim against the employer and all claims against the solicitors, but allowed the disciplinary aspect against the employer to proceed.