Deer v Walford & Anor

Victimisation cannot be inferred merely from a respondent’s unsatisfactory answers to a statutory questionnaire. The tribunal must assess, in the circumstances of the particular case, whether an omission or answer tends to show discriminatory motivation. Evasive or equivocal answers may justify an inference, but do not require one. A claim may be dismissed where the claimant proves neither the respondent’s knowledge of the protected act nor a discriminatory motive. Costs may be awarded where the claim was misconceived from the outset, the claimant unreasonably persisted after a deposit order, or the proceedings were conducted unreasonably.

An academic claimed that her former supervisor refused to provide a reference because he knew she had previously brought sex discrimination proceedings against the University. The Employment Tribunal accepted that he lacked the necessary knowledge and that his stated reasons for refusing the reference were genuine. It dismissed the claim and ordered the claimant to pay the respondents’ costs. She appealed, alleging errors concerning questionnaire responses, disclosure, the tribunal’s reasoning and the costs order. The central issues were whether an inference of victimisation should have been drawn and whether the costs order was lawfully made.

1. Liability. The appeal against dismissal of the victimisation claim was rejected. The claimant had to establish that Professor Walford knew or suspected that she had done the protected act. His acknowledged knowledge of a vague legal dispute involving football was insufficient. The Employment Tribunal was entitled to accept his evidence that he did not know the claim was one of sex discrimination.
2. Questionnaire responses. The Tribunal had considered the issue under section 74(2)(b) of the Sex Discrimination Act 1975, although it would have been preferable for its Reasons to refer expressly to that provision. The reasons, read as a whole, adequately explained why no inference was drawn. The answers were capable of being regarded as clear and straightforward, rather than evasive or equivocal. Even if they had been incomplete, that would not necessarily justify an inference of victimisation.
3. There are no special rules governing inferences from answers to a statutory questionnaire. The tribunal must assess whether the particular act or omission tends, in the circumstances, to show discriminatory motivation. Here, the contemporary explanation for refusing the reference was cogent and was supported by the timing and content of the correspondence.
4. Costs. The Employment Tribunal Rules of Procedure permitted costs where proceedings were conducted unreasonably or were misconceived. The deposit order related substantially to the grounds on which the claim failed, and persistence after that order was unreasonable. The unsupported allegations of collusion and conspiracy could also be treated as unreasonable conduct. The claim was misconceived from the beginning because it rested on implausible speculation without supporting evidence. The full costs order was therefore justified.
5. The appeal was dismissed in its entirety.

• Employment Tribunal, Reading: dismissed the victimisation claim after a hearing from 9–12 February 2010 and ordered the claimant to pay costs. Written Reasons were sent on 17 March 2010.
• Employment Appeal Tribunal: dismissed the appeal in its entirety.