Royal Mail Group Plc v Jan

In a victimisation claim under the Race Relations Act 1976, an employment tribunal may assess the whole evidential picture at the first stage of the burden-of-proof test in Igen v Wong [2005] EWCA Civ 142. A manager’s decision to obtain files about earlier discrimination proceedings does not, without more, require an explanation or establish a prima facie case. Even if the first-stage threshold is crossed, the claim may fail where the tribunal’s findings show, on the balance of probabilities, that the relevant acts were not influenced by victimisation. Permission to appeal should not be granted on an issue rendered academic by subsequent proceedings where no practical purpose remains.

A postman brought claims against Royal Mail and several managers alleging race, religious and disability discrimination, together with victimisation. The Employment Tribunal upheld some discrimination allegations but rejected the victimisation claim. The Employment Appeal Tribunal allowed parts of Royal Mail’s appeals, remitted certain discrimination issues, and dismissed the cross-appeal concerning victimisation.

Royal Mail’s appeal was not before the Court of Appeal on the merits. Permission was sought on two issues: whether the victimisation claim concerning Mr Pybus disclosed an arguable error of law, and whether the Employment Tribunal could consider allegations concerning Mr Turvey and Mr Pybus when determining whether Mr Calouri’s conduct formed part of a continuing act. The latter issue became academic after the remitted proceedings determined the remaining claims.

1. Victimisation. Maurice Kay LJ, with whom Pill and Lloyd LJJ agreed, held that the Employment Tribunal had applied the burden-of-proof approach under section 54A(2) of the Race Relations Act 1976 without error. At stage 1 it was entitled to consider all the evidence, including Mr Pybus obtaining files relating to the claimant’s earlier proceedings, and to conclude that the threshold had not been crossed. Obtaining those files, without more, did not itself require an explanation.
2. Alternative conclusion. Even if stage 1 had been satisfied, the Tribunal’s findings showed that it was satisfied, on the balance of probabilities, that none of Mr Pybus’s acts involved victimisation or other impropriety under the race relations legislation. The proposed ground therefore had no real prospect of success.
3. Scope of remission. The Employment Appeal Tribunal had remitted issues concerning Mr Calouri and Mr Hibbert. The time issue concerning Mr Calouri depended on the continuing-act doctrine founded on section 68(7)(b) of the Race Relations Act 1976. By the time of the Court of Appeal hearing, however, the claims concerning Mr Pybus and Mr Turvey had fallen out of the case, while the claim against Mr Calouri had failed both on the merits and for want of jurisdiction. Those matters could no longer provide links in a continuing act, and the proposed appeal was entirely academic.
4. Permission to appeal was refused on both issues. The formal order was: Application refused.

• Court of Appeal (Civil Division) — In Royal Mail Group Plc v Jan [2008] EWCA Civ 341, refused permission to appeal on both issues and ordered that the application be refused.
• Employment Appeal Tribunal — Allowed parts of Royal Mail’s appeals, remitted certain race and religious discrimination issues to the Employment Tribunal, and dismissed Mr Jan’s cross-appeal concerning victimisation.
• Employment Tribunal — Allowed some discrimination claims, rejected the victimisation claim, and on remission rejected the claim against Mr Calouri on both merits and limitation grounds.