Ministry Of Defence v P and Q (Victimisation Discrimination)

Victimisation requires a protected act. A claimant must have done something under or by reference to the Sex Discrimination Act 1975, or alleged facts amounting to unlawful discrimination. Responding to conduct which was in fact discriminatory does not suffice if the claimant never raised discrimination. The words “whether or not the allegation so states” remove the need to describe the conduct as unlawful, but do not dispense with alleging facts showing discrimination. On a deposit-order application, broad-brush assessment is permissible. An employment judge may decline to order a deposit where deficiencies in particularisation may be remedied and limitation issues depend on the eventual assessment of the evidence and whether it is just and equitable to extend time.

P and Q brought sex-discrimination claims against the Ministry of Defence arising from court-martial and Army redress proceedings. P was the subject of the proceedings and Q had acted as her defending and assisting officer. They later sought to add victimisation claims, relying on their conduct in contesting the proceedings and pursuing complaints. The Employment Judge allowed the amendments, but ordered deposits in respect of the victimisation claims, while declining to order deposits for the primary discrimination claims.

The Ministry appealed both decisions. The central issues were whether the pleaded conduct could constitute protected acts under heads (c) or (d) of section 4(1) of the Sex Discrimination Act 1975, and whether the primary claims had little reasonable prospect of success for the purposes of rule 20(1).

1. Victimisation. The appeal was allowed. The acts relied upon were contesting the charges, submitting and pursuing redress complaints, and assisting or advising P. None involved a reference to sex discrimination or an allegation of facts amounting to a contravention of the Sex Discrimination Act 1975. The fact that the underlying treatment might have been discriminatory was immaterial unless the claimant asserted rights under the Act.
2. Head (c) of section 4(1) concerns doing something under or by reference to the Act. Head (d) requires an allegation of an act which would amount to a contravention of the Act. The words “whether or not the allegation so states” mean that the claimant need not expressly label the conduct unlawful or refer to the Act. They do not make a bare allegation of adverse conduct sufficient. The factual basis of the alleged discriminatory treatment must be identified. Q’s alleged protected acts could not satisfy the statutory requirements because they consisted only of assisting P.
3. The victimisation claims therefore had no reasonable prospect of success. Permission to amend P’s and Q’s first claims was revoked, and the victimisation allegations in Q’s second claim were struck out.
4. Primary discrimination claims. The appeal against refusal to order deposits was dismissed. Although the reasoning was brief, the Employment Judge was entitled to conclude that the lack of particularisation might reflect practical difficulties rather than an inherent absence of merit. Broad-brush assessment is often appropriate on a rule 20 application, and appellate intervention was unwarranted absent irrationality.
5. The Judge was also entitled to treat the possibility of an extension of time under section 76(5) as requiring assessment of all the material circumstances at the substantive hearing. No view was expressed on the ultimate merits of the limitation issues. The refusal to order a deposit did not determine any later costs issue.

• Employment Tribunal: The Employment Judge permitted the victimisation amendments, ordered deposits of £250 in relation to the victimisation claims, and declined to order deposits for the primary discrimination claims.
• Employment Appeal Tribunal: The victimisation decision was reversed: permission to amend was revoked and the pleaded victimisation allegations were struck out. The refusal to impose deposits on the primary discrimination claims was upheld.