Derbyshire and Others v St Helens Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Jonathan Parker,Lord Justice Lloyd,LORD JUSTICE MUMMERY |
| Judgment Date | 29 July 2005 |
| Neutral Citation | [2005] EWCA Civ 1108,[2005] EWCA Civ 977 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2004/1988; A2/2004/1850,Case No: A2/2004/1988; A2/2004/1850 |
| Date | 29 July 2005 |
[2005] EWCA Civ 1108
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MRS JUSTICE COX PRESIDING)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Mummery
A2/2004/1988; A2/2004/1850
No attendance by Counsel
For the reasons given in the draft judgments, copies of which have been made available to counsel, this appeal is allowed. A draft order has been placed before the court, covering the matters on which there has been some disagreement between the parties following the distribution of the draft judgments.
The first area of disagreement was what consequential order should be made on allowing the appeal. Written submissions have been received from the parties on this question, and the members of the court having considered those have decided that the appropriate order is for the claimant's applications to be remitted to a new hearing before a freshly constituted employment tribunal.
The other matter on which there was disagreement between the parties was as to whether this court should grant leave to appeal to the House of Lords. Again, detailed written submissions have been made on that, and the members of the court, having considered them, have concluded that permission should be refused. The position is that the House of Lords has only recently, in the case of Khan, considered the construction of the sections in the discrimination legislation which relate to victimisation. This case turns on the particular circumstances, and especially on the sending of two particular letters. It is difficult to see how any point of general public importance is raised by the facts of this case. The law applied by this court to those facts is that so recently laid down by the House of Lords.
In those circumstances, the order which the court will make is as follows:
"(1) The appeal will be allowed the decision of the employment tribunal set aside.
(2) The claimant's applications be remitted for a new hearing before a freshly constituted employment tribunal.
(3) The respondents do pay the appellant's costs of the appeal in the Court of Appeal, to be the subject of detailed assessment in default of agreement between the parties.
(4) Permission to appeal to the House of Lords is refused."
[2005] EWCA Civ 977
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(THE HON MRS JUSTICE COX)
UKEAT/0952/03/ILB
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Jonathan Parker
Lord Justice Lloyd
Case No: A2/2004/1988; A2/2004/1850
MR CHRISTOPHER JEANS QC and MR SIMON GORTON (instructed by St Helens MBC) for the Appellant
MR JOHN HENDY QC and MR DAMIEN BROWN (instructed by Thompsons) for the Respondents
Introduction
1. The setting of this appeal is the sensitive area of alleged “victimisation discrimination” by an employer in the course of litigation brought by employees to enforce their statutory employment rights. In this case equal pay claims against the employer under section 2 of the Equal Pay Act 1970 were pending in the employment tribunal. The bringing of the proceedings by the employees was “a protected act” of each employee in the sense that employees are entitled to protection not only against abuse of process (as other litigants are), but also, by virtue of provisions in the Sex Discrimination Act 1975, against the infliction of less favourable treatment by reason of a protected act.
2. As Lord Nicholls explained in Shamoon v. Chief Constable of the RUC [2003] ICR 337 (paragraph 5) protection against victimisation is “an essential ancillary safeguard” for employment rights—
“..…..Persons who exercise their statutory rights are not to be penalised for doing so. Employers and others who retaliate in this way are guilty of discrimination. The victimisation provisions adopt substantially the same structure as the direct discrimination provisions, save only that the proscribed act is different. In cases of direct discrimination, the proscribed ground is sex, or whatever. In cases of victimisation the proscribed ground is that the claimant committed one of the “protected acts”; for instance, that the claimant had brought proceedings under the Act. Subject to this necessary adjustment, the definition of victimisation calls for a similar “less favourable treatment” comparison. In the case of direct sex discrimination the comparison is between the treatment afforded to the claimant woman and that afforded to a man. In the case of victimisation the comparison is between the treatment afforded to the claimant and the treatment afforded to a person who has not committed a protected act.”
3. The application of the provisions protecting employees from victimisation requires the court to perform a delicate balancing feat: on the one hand, the employer, as a litigant, is entitled to take reasonable steps to protect his legitimate litigation interests; on the other hand, the employee is entitled not to be treated less favourably for bringing discrimination proceedings against the employer. Difficulties in application of the provisions stem from the tensions inherent in the antagonistic litigation situation identified by Lord Hoffmann in Chief Constable of West Yorkshire Police v. Khan [2001] ICR 1065 (a case on the application of the similar victimisation provisions in section 2 of the Race Relations Act 1976 to an employer's refusal of a reference for an employee, whose complaint of race discrimination was pending)—
“59. ….once proceedings have been commenced, a new relationship is created between the parties. They are not only employer and employee but also adversaries in litigation. The existence of that adversarial relationship may reasonably cause the employer to behave in a way which treats the employee less favourably than someone who has not commenced such proceedings. But the treatment need not be, consciously or unconsciously, a response to the commencement of proceedings. It may simply be a reasonable response to the need to protect the employer's interests as a party to the litigation.”
The appeal
4. This appeal is from the order of the Employment Appeal Tribunal (Cox J presiding) on 23 July 2004 ( [2004] IRLR 851). It dismissed an appeal by St Helens Metropolitan Borough Council (the Council) from the decision of the employment tribunal (extended reasons sent to the parties on 25 September 2003) upholding complaint by the applicants of victimisation contrary to section 4 of the Sex Discrimination Act 1975 (the 1975Act).
5. Pill LJ granted permission to appeal both the decision of 23 July 2004 and the earlier decision of the Employment Appeal Tribunal (HHJ Ansell presiding) at a preliminary hearing of the appeal on 13 January 2004.
The legislation
6. Section 4 of the 1975 Act is concerned with discrimination by way of victimisation in the area of sex discrimination. It provides—
“(1) A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats or would treat the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has—
(a) brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970…
or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.”
7. Section 6 (2)(b) of the 1975 Act provides that it is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her by, among other things, “subjecting her to any detriment.”
The facts
8. 510 female staff employed by Council as catering staff in its school meals service brought equal pay claims against the Council in the autumn of 1998. There was a settlement of the claims with the majority (470) of the staff, who agreed to accept a lump sum to be shared out amongst them. 39 employee applicants (the Applicants) did not join in the settlement. Their claims proceeded to a successful hearing in the employment tribunal.
9. The Applicants' claims for victimisation are founded on the sending of 2 letters by Mr Sanderson, the Council's acting director of environmental protection on 19 January 2001, just 2 months before the hearing of the equal pay claims fixed for 19 March 2001. One letter was sent to all the catering staff, including the Applicants. The other letter was sent directly to each of the Applicants addressed by name. The receipt of the letters by the Applicants led to complaints of victimisation in applications presented by them to the employment tribunal on 1 February 2001. Copies of the letters were attached to the applications. They are copied in full in the schedule to the judgments on this appeal, as they are central to the case and it is difficult to summarise them or even to quote from them selectively without diminishing or distorting their overall impact on the reader.
10. The essence of the complaint is set...
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