Parmar v East Leicester Medical Practice

Judicial proceedings immunity applies to claims of discrimination by way of victimisation where the alleged detriment consists of evidence or witness statements prepared for legal proceedings. The immunity is absolute and reflects the public interest in enabling witnesses to participate in the administration of justice without fear of subsequent liability. The protection applies equally to victimisation and primary discrimination. It is not displaced by the possibility that misconduct in the conduct of discrimination proceedings may contribute to an award of aggravated damages. Such damages are compensatory, are awarded in the same proceedings, and do not create liability in separate proceedings based on the evidence itself.

The claimant had brought proceedings for unfair dismissal and racial discrimination. Those proceedings were dismissed because the requirements of section 32 of the Employment Act 2002 had not been satisfied. He then alleged that statements served by witnesses in the earlier proceedings contained untruths motivated by his having brought the proceedings, and brought a victimisation claim under section 2 of the Race Relations Act 1976.

The Employment Tribunal struck out the claim because the statements attracted judicial proceedings immunity. The issue on appeal was whether that immunity applied to a victimisation claim, and whether the possibility of aggravated damages for misconduct during discrimination proceedings created an exception.

1. The appeal was dismissed. The alleged acts consisted of statements prepared for the respondents’ defence in earlier proceedings and therefore fell within judicial proceedings immunity.

2. The principles extracted from Darker v Chief Constable of the West Midlands Police establish that a witness has absolute immunity from proceedings based on evidence alleged to be false, malicious or careless. The immunity extends to the preparation of witness statements, even where the trial does not take place. It is justified by the public interest in allowing witnesses to participate in the administration of justice without fear of later legal liability or harassment.

3. Following Heath v Commissioner of Police of the Metropolis, the immunity extends beyond common-law claims to claims under discrimination legislation. The same reasoning applies to victimisation. There are no special considerations requiring different treatment, and victimisation is proscribed principally to protect the underlying right not to suffer primary discrimination.

4. Coote v Granada Hospitality Limited did not require a different conclusion. The effectiveness of statutory protection against victimisation must be understood consistently with the public-interest policy underlying judicial proceedings immunity.

5. Zaiwalla & Co v Walia could not create an exception to the immunity. The immunity issue had not been argued or decided there, and the Employment Appeal Tribunal was bound by the ratio in Heath. The possibility of an aggravated-damages award did not alter that conclusion.

6. Aggravated damages differ from liability in separate proceedings for evidence given during litigation. They are compensatory rather than punitive and are awarded in the proceedings already before the tribunal. The risk of such an award therefore does not undermine the rationale of the immunity rule.

• Employment Appeal Tribunal: The appeal from the Leicester Employment Tribunal was dismissed. The Tribunal’s decision to dismiss the victimisation claim on the basis of judicial proceedings immunity was upheld.
• Leicester Employment Tribunal: The claim was dismissed as having no reasonable prospect of success, substantially because the impugned witness statements attracted judicial proceedings immunity.