Deer v University of Oxford

Victimisation claims are not defeated merely because the underlying grievance lacked merit or the procedure would have reached the same result. Less favourable handling of a grievance or appeal may itself constitute actionable treatment where it was caused by a protected act. A procedural failure may establish detriment even if fuller investigation would have changed nothing; the eventual outcome may affect compensation.

Ordinary and reasonable steps taken in litigation, including reliance on legal advice, will ordinarily not amount to detriment. Claims that are weak but not bound to fail may proceed subject to a deposit order.

The appellant, a former PhD student and employee of the respondent, brought five victimisation claims after a former doctoral supervisor refused to provide a reference. Claims 3 and 4 concerned the handling of her grievance and grievance appeal. Claim 5 concerned the refusal to provide or preserve documents and personal data sought in connection with ongoing litigation.

The Employment Tribunal struck out the remaining claims at a pre-hearing review. The Employment Appeal Tribunal upheld that decision on appeal, as recorded in [2013] UKEAT 0532_12_1007. Permission to appeal to the Court of Appeal was limited to Claims 3 to 5. The central issues were whether the alleged lack of merit in the underlying grievance defeated Claims 3 and 4, and whether the conduct concerning disclosure and data constituted a detriment for Claim 5.

The appeal was allowed in relation to Claims 3 and 4 and dismissed in relation to Claim 5.

1. Under the Sex Discrimination Act 1975, a victimisation claim required less favourable treatment and detriment. Under the Equality Act 2010, victimisation was framed as subjecting a person to a detriment because they had done a protected act. The statutory gap concerning ex-employees was addressed in Jessemey v Rowstock Ltd [2014] EWCA Civ 185.
2. Detriment was assessed from the claimant’s perspective. It existed if a reasonable person would or might regard the conduct as detrimental in all the circumstances. An unjustified sense of grievance was insufficient, but discriminatory treatment could itself create a legitimate sense of injustice.
3. The Employment Tribunal had erred in treating the failure of the substantive grievance as necessarily defeating the allegations concerning the grievance and appeal procedures. A failure to investigate properly could amount to less favourable treatment and detriment if caused by the protected act, even if a fuller investigation would have produced the same substantive outcome. The outcome would be relevant to compensation, not necessarily to liability.
4. The high threshold for striking out a discrimination claim for having no reasonable prospect of success was emphasised by reference to Balls v Downham Market High School and College [2011] IRLR 217 and Aynyanwu v South Bank Students Union [2001] IRLR 305. The respondent’s new merits-based argument had not been advanced below. The Court of Appeal would generally entertain a fresh ground only exceptionally, in accordance with Glatt v Sinclair [2013] EWCA Civ 241 and Crane T/A Indigital Satellite Services v Sky In-Home Ltd [2008] EWCA Civ 978.
5. As to Claim 5, delay in providing information could in principle constitute detriment. However, ordinary and reasonable steps taken in the conduct of litigation, including reliance on legal advice, could not reasonably be treated as detriment. Applying Pothecary Witham Weld v Bullimore [2010] IRLR 572, the claim was fanciful and unsustainable.
6. Claims 3 and 4 were to proceed to trial, subject to deposits of £500 for each claim under rule 39 of the Tribunal Rules. The appellant could make submissions concerning ability to pay within seven days of hand-down; otherwise the deposits were to be lodged within four weeks.

• Court of Appeal (Civil Division): Allowed the appeal concerning Claims 3 and 4, subject to deposit orders, and dismissed the appeal concerning Claim 5.
• Employment Appeal Tribunal: Dismissed the appeals concerning Claims 3 to 5, in the decision reported at [2013] UKEAT 0532_12_1007.
• Employment Tribunal: At a pre-hearing review, struck out Claims 2 to 5 in a judgment dated 19 July 2012. Claim 2 was not pursued in the Court of Appeal.