Deer v University of Oxford

An Employment Tribunal may strike out further victimisation claims where a claimant withheld an alternative case during earlier case-management and merits proceedings, then sought to advance it after the principal issue had been finally determined. Abuse of process requires a broad, merits-based assessment of the public and private interests, including whether the claimant failed to put all material issues before the tribunal when it could fairly manage them.

Victimisation claims are not invariably entitled to a full hearing. A claim may properly be struck out under the applicable Tribunal rule where it has no reasonable prospect of establishing less favourable treatment or detriment. Knowledge of the protected act remains essential where the alleged discriminator is said personally to have victimised the claimant.

The claimant had previously settled a sex-discrimination claim against the University. She later brought five victimisation claims arising from a professor's refusal to provide a reference and from the University's subsequent handling of her grievance, grievance appeal and document-preservation requests.

Claim 1, against the professor and the University, was dismissed after a full hearing. The Tribunal found that the professor did not know of the earlier protected act. Claims 2 to 5, against the University, were subsequently struck out by Employment Judge Barrowclough under ET rule 18(7)(b), by a judgment dated 19 July 2012.

The claimant appealed the strike-out. The central issues were whether claim 2 was an abuse of process or barred by issue estoppel, and whether claims 3 to 5 had any reasonable prospect of establishing victimisation.

1. Appeal dismissed. The Employment Judge was entitled to strike out claims 2 to 5. The judge's alternative ruling that claim 2 was barred by issue estoppel was wrong, but that error did not affect the result.

2. The earlier Tribunal's finding that the professor lacked knowledge of the protected act was sufficient to dispose of claim 1. Its further finding concerning the reason for his conduct was not necessary to that decision. Issue estoppel therefore did not prevent the claimant from alleging, in claim 2, that the professor had been an innocent conduit for victimisation by unidentified colleagues.

3. Nevertheless, pursuing that alternative case was an abuse of process. The claimant had not made the case clear during case management, had not challenged the formulation that the agency allegation depended on the professor's knowledge, and had not raised it when opposing the separation of claim 1. She instead sought to advance it only after losing the knowledge issue. Applying Johnson v Gore Wood [2002] 2 AC 1, that conduct amounted to keeping a claim in reserve rather than enabling fair management of the issues.

4. Claims 3 and 4 had no reasonable prospect of success. Victimisation required both less favourable treatment, compared with a person who had not done the protected act, and detriment. The Employment Judge was entitled to find no realistic prospect of either. The claimant also suffered no detriment from the handling of a grievance whose central allegation—that the professor knew of the protected act—had been determined against her.

5. Claim 5 also disclosed no reasonable prospect of detriment. The University's position that preservation and data requests should be addressed through disclosure was a reasonable litigation response, particularly once claims 1 to 4 had failed.

6. Observations in discrimination cases do not require every victimisation claim to proceed to a full hearing. Each case depends on its facts. ET rule 18(7)(b) serves to prevent respondents being vexed by continuing claims which have no viable basis.

• Employment Appeal Tribunal: dismissed the claimant's appeal from the strike-out of claims 2 to 5. It rejected issue estoppel as a basis for striking out claim 2, but upheld the strike-out on abuse-of-process grounds.
• Employment Tribunal (Reading): Employment Judge Barrowclough struck out claims 2 to 5 under ET rule 18(7)(b) following a pre-hearing review on 13–14 June 2012, with reasons dated 19 July 2012.
• Employment Tribunal (Reading): the Warren Tribunal had earlier dismissed claim 1 after a merits hearing, finding that Professor Walford did not know of the protected act.