Pothecary Witham Weld v Bullimore (Equality and Human Rights Commission intervening)

Victimisation claims under the Sex Discrimination Act 1975 are ordinarily determined by asking whether the claimant suffered less favourable treatment or a detriment and whether the protected act significantly influenced the decision, consciously or unconsciously. The specialised reasoning in litigation-protection cases does not govern cases where no relevant litigation was pending. Section 63A applies to victimisation claims because victimisation is included within the Act’s definition of discrimination. Once a prima facie case is established, a tribunal may uphold the claim if it is not persuaded that the employer’s explanation excludes any significant influence from the protected act; it need not make an express finding rejecting that explanation.

The claimant, a former solicitor, brought victimisation proceedings after a former employer supplied a less favourable reference which mentioned her earlier sex-discrimination proceedings. The Employment Tribunal upheld the victimisation claim, applying the reverse burden of proof under section 63A of the Sex Discrimination Act 1975.

The employer appealed, arguing that section 63A did not apply to victimisation, that the provision was ultra vires, and that the Tribunal had misapplied Khan and Derbyshire or failed to determine the employer’s true reason. The central issues were the proper approach to causation and detriment, the scope and validity of section 63A, and whether the Tribunal’s reasoning was legally sufficient.

1. Appeal dismissed. The Tribunal had made sufficient findings to uphold the victimisation claim based on the reference.
2. The ordinary approach, derived from Nagarajan, is to ask whether the claimant suffered less favourable treatment or a detriment and whether the protected act was, or formed part of, the reason for it. In an ostensibly innocent-reason case, the relevant question concerns the decision-maker’s conscious or unconscious mental processes. Significant influence is sufficient.
3. Khan and Derbyshire concern the particular situation where an employer acts to protect its position in current discrimination litigation. They are not the primary framework for ordinary victimisation cases. In litigation-protection cases, the act is treated as done by reason of the protected act, while detriment is assessed from the standpoint of a reasonable litigant. Reasonable conduct in defence of litigation will ordinarily not amount to detriment. There is no freestanding honest-and-reasonable-employer defence.
4. Section 63A applies to victimisation claims. Unlike section 54A of the Race Relations Act 1976, section 63A contains no wording restricting its operation to discrimination on grounds of sex. Victimisation is discrimination within section 5(1)(a) of the 1975 Act.
5. The reverse burden provision was not ultra vires. Even if the Burden of Proof Directive did not itself require its application to victimisation, extending the provision to victimisation was closely related to the Directive’s implementation and fell within section 2(2)(b) of the European Communities Act 1972. Oakley was applied.
6. Once a prima facie case under section 63A is established, the Tribunal may find that the employer has failed to prove that the protected act had no significant influence. It need not make a firm finding rejecting the employer’s explanation, although positive findings are preferable where possible.

• Employment Tribunal, London Central: upheld the claimant’s victimisation claim and awarded injury-to-feelings compensation. The appeal to the Employment Appeal Tribunal concerned liability.
• Employment Appeal Tribunal: dismissed the appeal and refused permission to amend the Notice of Appeal to raise the vires point.