Pricewaterhouse Coopers LLP v Popa

In a post-employment victimisation claim, the tribunal must determine whether the alleged discriminator acted because of the protected act. The question is the reason for the treatment, rather than causation in the ordinary legal sense. The burden remains on the claimant to establish the claim on the balance of probabilities. The approach in King v Great Britain-China Centre permits an inference of victimisation where less favourable treatment follows a protected act and the employer’s explanation is inadequate or unsatisfactory. A detriment remains an essential ingredient of a post-termination victimisation claim. A finding of less favourable treatment and an inference of victimisation do not dispense with that requirement.

Pricewaterhouse Coopers LLP appealed against an Employment Tribunal decision finding that it had victimised Ms Popa by sending a code 1 employment reference, rather than a code 2 reference, to Kroll in connection with proposed employment by Credit Suisse. The Employment Tribunal inferred that the different reference was given because Ms Popa had previously brought race discrimination proceedings against PwC. It rejected other claims and awarded compensation for injury to feelings.

The appeal challenged the tribunal’s approach to the reason for the treatment, burden of proof, extension of time and detriment. The central issues were whether the tribunal had properly applied the principles in King, whether it was entitled to extend time, and whether it had determined that the reference subjected Ms Popa to a detriment.

1. Appeal allowed. The finding of unlawful victimisation was set aside. The victimisation claim was remitted to the same Employment Tribunal to determine whether the code 1 reference subjected Ms Popa to a detriment and, on that basis, the outcome of the claim.
2. The tribunal did not err in considering the reason for the reference. The relevant question was why the alleged discriminator acted as it did. The tribunal had considered the employer’s explanation that an administrator had exercised discretion, had found that explanation speculative and unsatisfactory, and had rejected the factual basis for assuming that an administrator made the decision.
3. Knowledge of the protected act is necessary where the protected act is said to be the reason for the treatment. The tribunal’s reasoning nevertheless showed that it had considered whether the decision-maker knew of Ms Popa’s earlier race discrimination proceedings.
4. The reverse burden of proof in section 54A of the Race Relations Act 1976 did not apply to victimisation claims. The tribunal correctly applied the approach in King v Great Britain-China Centre: the claimant bore the burden of proving the case on the balance of probabilities, and an inadequate or unsatisfactory explanation could justify an inference of victimisation.
5. The Employment Appeal Tribunal would interfere with an extension of time only for an error of law or perversity. The tribunal had been entitled to conclude that PwC had not suffered material prejudice and had not erred in exercising its discretion under section 68(6).
6. A detriment was an essential ingredient of the claim under section 27A(2)(a), as under section 4(2)(c), of the Race Relations Act 1976. The tribunal had found less favourable treatment and victimisation but had not determined whether the reference was objectively capable of amounting to a detriment. That issue had to be decided afresh on the existing evidence.
7. The question whether section 27A applied to victimisation claims was left open. The appeal proceeded on the assumed basis that it did.

• Employment Appeal Tribunal: allowed PwC’s appeal from the Employment Tribunal judgment entered on 16 October 2009. The finding of unlawful victimisation was set aside and the claim was remitted to the same tribunal.
• Employment Tribunal: found victimisation established in relation to the 27 June 2008 reference, awarded £750 compensation for injury to feelings, and dismissed the remaining claims.