When an employee makes a discrimination claim which is disputed by the employer, the employer must take care not to put undue pressure on the employee to concede the claim – otherwise the employee may have grounds for making a further claim of victimisation.
The House of Lords has now given its judgment in the case of Derbyshire v St Helen’s Council. In that case, the local authority employer had been faced with over 500 equal pay claims made by school dinner ladies but had settled all but 39 of them. It then sent two letters – one to all catering staff and the other to all the remaining claimants saying that the continuance of the claims would have a ‘severe impact on all staff’ and that the financial impact would be such that the local authority would have to discontinue its school meals provision altogether and/or make wholesale redundancies. The letter to the claimants urged them to withdraw their claims. They brought fresh discrimination claims, alleging that the sending of the two letters amounted to victimisation under the Sex Discrimination Act. The House of Lords has now upheld their claim.
It considered that the Court of Appeal, which had rejected the claim, had paid too much attention to the employer’s motives in sending the letters (it wanted to settle the claims). It would probably not have been victimisation for the employer’s solicitors to write to the employees’ solicitor setting out, in appropriately measured and accurate terms, the financial and industrial consequences of the remaining claims succeeding. However, the letters in this case went too far. They were intimidating and amounted to an attempt to force a surrender, regardless of the merits of the case. This caused detriment to the claimants and, in victimisation cases, the effect that the act in question has on the victims is a key issue.
Points to note:
- Wanting to dissuade an employee from bringing, or continuing with, a claim will not amount to victimisation. As the House of Lords said, ‘ordinary steps to settle or compromise a claim can do no-one any harm and may even do some good’. It is usually safest for all communication to be between solicitors while Tribunal proceedings are in progress.
- It is not victimisation for an employer to refuse to give a reference while the employee has an outstanding claim against it. Otherwise, if the reference is good, it would weaken the employer’s defence of the claim but if the reference is bad and the employer loses at Tribunal, it may increase the amount of compensation awarded to the employee.
- However, as the House of Lords says, the employer must avoid doing anything that might make a reasonable employee feel unduly pressurised to concede the claim. Otherwise, the employee will be entitled to bring a further claim of victimisation.