Thompson v London Central Bus Company Ltd

For an associative victimisation claim, the decisive question is whether the employer treated the employee adversely because of protected acts done by another person. The employee need not establish a prescribed form or degree of association with that person. Any association may instead be relevant evidentially to the factual question of causation, including what was in the employer’s mind.

A claim should not be struck out under Rule 37 where a crucial core of fact is disputed, save in exceptional circumstances such as where documents conclusively disprove the alleged facts. That restraint applies with particular force in discrimination claims.

The claimant, a bus driver, alleged that disciplinary action concerning a high-visibility vest amounted to victimisation. He did not contend that he had done a protected act. His case was that the respondent acted because it associated him with other employees who had done protected acts.

At an earlier preliminary hearing, Employment Judge Spencer held that, in principle, the claimant could rely on protected acts done by others. Employment Judge Hall-Smith later struck out the victimisation claim as having no reasonable prospect of success and made a costs order. The Employment Appeal Tribunal considered whether that strike-out applied the correct approach to associative victimisation and disputed facts.

1. Appeal allowed. The Employment Judge struck out the claim on an incorrect legal basis. The application to strike out was remitted for rehearing.

2. The earlier preliminary ruling established, and the Employment Judge was required to accept, that the claim could in principle depend on protected acts done by others. The question under section 27 was whether the claimant’s treatment was by reason of those acts. It did not require proof of a particular relationship between the claimant and those who performed them.

3. The judge’s focus on whether common trade-union membership constituted a sufficiently close form of association was therefore erroneous. As explained in EBR Attridge LLP v Coleman [2010] ICR 242, association is convenient shorthand rather than the focus of the inquiry. The relevant issue is whether the protected acts of a third party formed part of the employer’s reason for the detrimental treatment. That is a fact-sensitive question and may depend wholly or partly on the employer’s state of mind.

4. Under Rule 37 of the Employment Tribunal Rules of Procedure 2013, a tribunal should not resolve a crucial core of disputed fact through an impromptu trial on a strike-out application. The Employment Judge’s observations about causation did not clearly establish that the claim would have been struck out on a lawful and independent basis. On rehearing, the claim must not be struck out if such a disputed factual core exists.

5. The Employment Appeal Tribunal refused the claimant’s adjournment application. Allowing the appeal and remitting the strike-out issue meant that an adjournment would serve no useful purpose.

• Employment Appeal Tribunal: allowed the claimant’s appeal, set aside the strike-out decision, and remitted the application for rehearing.
• Employment Tribunal, London South: Employment Judge Hall-Smith struck out the victimisation claim on 19 June 2014 as having no reasonable prospect of success and ordered costs of £850.
• Employment Tribunal preliminary hearing: Employment Judge Spencer held on 14 May 2014 that the claimant could in principle rely on protected acts done by others. No appeal was brought against that ruling.