Deer v University of Oxford

The Court of Appeal allowed in part an appeal from the Employment Appeal Tribunal about the strike-out of victimisation claims brought by a former PhD student and ex-employee. The court examined the legal tests for victimisation under the Sex Discrimination Act 1975 (section 4(1) and section 20A as amended) and the Equality Act 2010 (section 27 and section 108), emphasising that a claimant must establish both less favourable treatment and a detriment. The court held that an unfounded substantive grievance does not automatically prevent an ex-employee from showing that procedural handling of that grievance amounted to less favourable treatment or caused a detriment; procedural failings, even where they do not alter the substantive outcome, can in principle found a victimisation claim. Accordingly the strike-out of Claims 3 and 4 (complaints about handling of a grievance and an appeal) was set aside and those claims were remitted for full hearing subject to a deposit order. The strike-out of Claim 5 (refusal to provide or preserve documents / data) was upheld because the respondent acted on legal advice in the course of litigation and the tribunal was entitled to find no detriment.

Background and parties

• The appellant, Dr Cecile Deer, was a former PhD student and ex-employee of the University of Oxford who had previously settled a sex discrimination claim in 2008. After leaving employment she issued multiple employment tribunal claims (Claims 1–5) alleging victimisation because she had advanced the settled claim and subsequent proceedings.
• The respondent was the University of Oxford.

Procedural history

• Claim 1 (against Professor Walford and the University) was heard and dismissed by the Employment Tribunal on 17 March 2010. Permission to appeal that dismissal to the EAT was refused and further challenge to the Court of Appeal failed.
• Claims 2–5 were considered at a pre-hearing review and struck out by Employment Judge Barrowclough on 19 July 2012. The EAT (HH Judge Clark) allowed the appeal in part (with respect to issue estoppel on Claim 2) but otherwise dismissed the appeals on Claims 3–5: [2013] UKEAT 0532_12_1007. The appellant obtained permission in part to bring this appeal to the Court of Appeal.

Nature of the claims and issues

• The claims before the Court of Appeal concerned victimisation: (i) Claims 3 and 4 alleged victimisation in the handling of an internal grievance and the subsequent grievance appeal (relying on the Sex Discrimination Act 1975 and section 20A relating to ex-employees); (ii) Claim 5 alleged victimisation in the respondent's refusal to provide or agree to preserve documents / personal data (relying on the Equality Act 2010, section 27 and section 108).
• Key issues were whether the Employment Tribunal and the EAT were entitled to strike out Claims 3–5 on the grounds that, even if the pleaded facts were true, the claims could not establish less favourable treatment or detriment; and whether procedural defects in handling a grievance can constitute detriment where the substantive complaint is unfounded.

Court’s reasoning and decision

• On Claims 3 and 4 the Court of Appeal held that it was not lawful to strike those claims out on the basis that the substantive grievance was unfounded. The court explained that less favourable treatment and detriment are distinct elements and that procedural unfairness caused by victimisation can itself be a detriment even if the substantive outcome would have been the same. The appellant had not had an opportunity to litigate the specific argument about procedural failings (for example inadequate investigation of a key witness's knowledge), and it would be unfair to allow the respondent to succeed on a reasoning not advanced below. Accordingly the strike-out was set aside and the claims remitted for full hearing.
• On Claim 5 the court concluded there was no reasonable prospect of success: the university had relied upon legal advice (including Durant) in withholding or not preserving documents during ongoing litigation and the Employment Tribunal was entitled to find that this conduct could not reasonably be treated as a detriment in the litigation context. The strike-out of Claim 5 was therefore upheld.
• Given the weak and speculative nature of Claims 3 and 4, the court imposed a deposit condition (using powers analogous to rule 39 of the Tribunal Rules) requiring the appellant to lodge £500 per claim within a specified period to pursue those claims.

Appeal allowed in part. The Court of Appeal allowed the appeal in respect of Claims 3 and 4, concluding that procedural handling of a grievance can in principle constitute less favourable treatment and a detriment even where the substantive grievance is unfounded; those claims were remitted for full hearing. The court dismissed the appeal in respect of Claim 5, upholding the strike-out because the respondent had properly relied on legal advice in the conduct of litigation and the tribunal was entitled to find no detriment. The court imposed a deposit order of £500 for each of Claims 3 and 4 before they may proceed.

The case came to the Court of Appeal from the Employment Appeal Tribunal (UKEAT/0532/12, [2013] UKEAT 0532_12_1007) which had itself reviewed strike-out decisions of the Employment Tribunal (pre-hearing review judgment dated 19 July 2012). Claim 1 had been previously heard and dismissed by the Employment Tribunal with a full judgment delivered 17 March 2010; permission to appeal that decision to the EAT and the Court of Appeal had been refused earlier in the litigation.