Croad v University And College Union (Disability Discrimination : Discrimination by other bodies)

Withdrawal of a trade union's legal assistance because proceedings against the union create a reasonable conflict of interest is not victimisation merely because the proceedings are a protected act. The operative reason is the conflict, rather than the bringing of proceedings itself.

A representative may properly require a member to accept its professional advice. Withdrawal of internal support where advice is persistently ignored is not discriminatory where that requirement is unrelated to the member’s disability and would apply equally to a non-disabled comparator. An appellate tribunal will not reassess the employment tribunal’s factual evaluation absent an error of law.

The claimant, a university lecturer and member of the respondent union, had dyslexia and anxiety and depression. She alleged that the union failed to make reasonable adjustments, victimised her, and discriminated against her on grounds of sex when it limited and ultimately withdrew lay and legal support in her dispute with her employer.

The Cardiff Employment Tribunal dismissed all claims. It found that the union’s support was withdrawn because the claimant persistently rejected advice and, after she brought proceedings against the union, because a conflict of interest prevented it from providing legal assistance. The claimant appealed. The union pursued a cross-appeal on whether withdrawal of legal assistance in those circumstances was a detriment.

The central issues were the reverse burden of proof in a victimisation claim, the reason for withdrawing support, and whether the tribunal’s reasons were adequate.

1. Appeal dismissed; first ground of the respondent’s cross-appeal allowed. The Employment Tribunal made permissible findings that the withdrawal of internal support was caused by the claimant’s refusal persistently to accept advice. Its reasons, read with its earlier findings, adequately explained that conclusion. A representative cannot be expected to continue acting on that basis.

2. The tribunal was also entitled to find that the withdrawal of legal assistance was caused by a reasonable perception of conflict of interest after the claimant sued the union. The conflict was not professional embarrassment. A solicitor or legal representative could not properly act for the claimant against her employer while facing a claim by her concerning the very assistance being provided. It was therefore difficult to regard the union’s inability to act in that conflict as a detriment.

3. The fact that proceedings created the conflict did not establish victimisation. The decisive reason for the withdrawal was the conflict and the need to protect the union’s legal interests, not the claimant’s bringing of proceedings or allegation of disability discrimination. Even if the reverse burden of proof applied, the union had plainly discharged it.

4. The Tribunal expressed an inclination to hold that the reverse burden introduced by section 17A(1)(c) of the Disability Discrimination Act did not apply to victimisation, because victimisation was made unlawful in Part 7 rather than Part 2. It did not finally decide that issue because it was academic on the facts.

5. The EAT would not interfere with the tribunal’s careful factual assessment. Its conclusion that the claimant could communicate with her employer and that the disputed requirements were unrelated to her disabilities was not perverse.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and allowed the first ground of the respondent’s cross-appeal: [2011] UKEAT 0012_11_1306.
• Employment Tribunal, Cardiff: dismissed claims for disability discrimination by failure to make reasonable adjustments, victimisation and sex discrimination, in a decision promulgated on 8 April 2010.