Perhaps Oscar Wilde was thinking by etssetcf


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Walking on eggshells
How can employers avoid accusations of victimisation?                                                           for victimisation based upon the detriment
                                                                                                                caused by the council sending the two
Elliot Gold investigates                                                                                        letters.

                  erhaps Oscar Wilde was thinking            tion. During this, he applied for a new job        ODIUM AND INTIMIDATION
                  of litigation letters in employment        and asked for a reference. The chief constable
                  tribunal claims when he mused that         refused, fearing that it would prejudice his       The tribunal found for the claimants on the
          in matters of grave importance, style, not         position in the claim. The House of Lords          issue of victimisation. It found that the letters
          sincerity, was the vital thing. It is clear that   found for the respondent. Lord Nicholls            “caused distress to at least some of the claim-
          an employer is not permitted to victimise          stated:                                            ants, and incurred for them some odium”.
          its workers on account of them bringing                                                               They contained a threat that the claimants
          a discrimination claim. However, what                 “Employers, acting honestly and reasonably,     might deprive children of school dinners and
          amounts to victimisation in the context of         ought to be able to take steps to preserve their   cause redundancies among colleagues. The
          an imminent or ongoing claim is not always         position in pending discrimination proceed-        letters were addressed to the women them-
          a piece of cake.                                   ings without laying themselves open to a           selves rather than their advisers.
              Provisions against victimisation are           charge of victimisation” [emphasis added].             The council was left with egg on its face
          contained in the Sex Discrimination Act                                                               when the tribunal held that a reasonable
          1975 (SDA 1975), s 4. They are similar to              In litigation, parties ma ke of fers,          reaction to such a letter would be surrender
          those contained in other legislation relating      demands, or (veiled) threats in an attempt to      induced by fear of public odium and the
          to other forms of discrimination.                  choke-off proceedings. This, however, creates      reproaches of colleagues. The letter intimi-
              To demonstrate the existence of victimi-       a problem in discrimination claims. An             dated the ongoing claimants but not those
          sation, a worker must demonstrate:                 employer who pressurises a worker to drop          who had settled. Therefore, the council
           that they had performed a “protected             their discrimination claim may offend the          treated the claimants less favourably than
              act”;                                          victimisation legislation. It was an employer’s    they treated the others.
           as a result, their employer had treated          behaviour during pre-trial negotiations that           The tribunal found that the council did
              them less favourably; and                      was considered by the House of Lords in St         not, as in Khan, merely seek to avoid preju-
           the less favourable treatment was “by            Helens Borough Council v Derbyshire [2007]         dicing their position in the litigation. Rather,
              reason that” the worker had done the           UKHL 16, [2007] All ER (D) 207 (Apr).              they wanted the women to abandon their
              protected act.                                                                                    claims. It was reacting, if not to the bringing
                                                             THE FACTS OF DERBYSHIRE                            of the proceedings, then to their continu-
                                                                                                                ance. The council did not want to wait for
 “The decision of the EAT was considered by                  St Helens Council employed 510 women as            the outcome of the hearing; it wanted to
                                                             catering staff. They brought a claim against       prevent it altogether. The claim itself was
 some to be a recipe for disaster”                           the council for equal pay. Four hundred and        the cause of the detriment, rather than its
                                                             seventy of them settled. Thirty-nine women         setting.
              The mischief against which this guards is      continued. Two months before the date of the
          clear, even if the third hurdle can be difficult   hearing, the employers sent out two letters        DIRECT THREATS NOT
          to surmount. As Lord Nicholls stated in Chief      suggesting that the catering ladies were like      REQUIRED
          Constable of the West Yorkshire Police v Khan      turkey twizzlers voting for Christmas.
          [2001] UKHL 48, [2001] 4 All ER 834:                   It sent a first letter to all the catering     The council sought to appeal the reason for
                                                             staff stating that a successful claim by the       sending the letters—the honest and reason-
              “The primary object of the victimisation       39 women would raise costs and “make the           able defence. However, it was left in a pickle
          provisions…is to ensure that persons are not       provision of the service wholly unviable…In        when the Employment Appeal Tribunal
          penalised or prejudiced because they have          such circumstances…only a very small               (EAT) granted it permission to raise only
          taken steps to exercise their statutory rights     proportion of the existing workforce would         the issues relating to the comparator and less
          or are intending to do so.”                        be required”. It also suggested that it would      favourable treatment.
                                                             withdraw school meals. It sent a second letter         The council contended that less favour-
              Employers, however, may need to main-          to the 39 ongoing claimants stating that the       able treatment required something more than
          tain a relationship with their workers during      service could not withstand the costs from a       just the writing of a letter or the making of
          the litigation without prejudicing their           successful claim.                                  critical comments specific to litigation which
          position in the ongoing proceedings. This              The chips were down, the women won             caused distress to a claimant. It argued that a
          tension was considered in Khan. Raham              and none of council’s dire predictions came        letter would have to contain a threat levelled
          Khan, a police sergeant, brought against the       to pass. However, it all went pear-shaped          directly against a claimant for it to amount to
          chief constable proceedings for discrimina-        when the 39 women then brought a claim             less favourable treatment and victimisation.

846                                                                 15 June 2007 NEW LAW JOURNAL

    The EAT disagreed. It reaffirmed the             that the primary object of the victimisation       KEY POINTS
primary purpose of the victimisation provi-          provisions was to ensure that people were not
sions and considered that there was no justi-        to be penalised for taking steps to exercise        A direct threat of sanction or disciplinary action against
fication to place a restrictive meaning upon         their statutory rights.                                a claimant is not required for an employer’s behaviour
the word “treatment”. The council sent letters           The interpretation and analysis of Khan            to amount to less favourable treatment.
to the catering staff personally and at work,        were said to be problematic. First, the honest      When considering the statutory requirements, lawyers
stating that women might lose their jobs and         and reasonable test was not in the statute and         should focus on the word “detriment” rather than on the
children might lose school meals. This was an        placed an unclear meaning on the words “by             words “by reason that”.
attempt to persuade the women to abandon             reason that”. Further, the reasoning appeared       Whether an act has caused detriment should be
their claim where reproach and vilification          to suggest that whether an act could amount            viewed from the point of the worker rather than the
were inevitable. Such conduct was capable of         to victimisation had to be judged from the             employer.
amounting, and did amount, to less favour-           point of view of the alleged discriminator.         Distress and worry induced by an employer’s honest
able treatment. Behaviour amounting to               This did not sit well with either SDA 1975             and reasonable conduct in the course of its defence
victimisation did not require the threat of          or European jurisprudence. In considering              should not, save in the most unusual circumstances,
sanction against the claimants specifically.         whether an act caused detriment, the issue             constitute detriment.
                                                     had to be viewed from the point of view of          In victimisation claims, a respondent’s offer of settlement
HONEST AND REASONABLE                                the worker.                                            which contains costs threats or warnings should be
BEHAVIOUR                                                Instead, a tribunal should focus on the            send to a claimant’s advisers. A respondent would be
                                                     word “detriment” rather than the words “by             well advised not to make costs threats or warnings to a
The EAT refused the council permission to            reason that”. If an employer were to write             litigant in person.
appeal on the basis that there was “no real          to its worker’s solicitor in measured and
prospect of success”. The council must have          accurate terms, it would be difficult for the
been as pleased as punch when it succeeded           worker to claim that they had been subject            This difficulty is addressed by focus-
in the Court of Appeal—especially when               to a “detriment”. A worker could not estab-       ing on the detriment. Employers are able to
Lord Justice Mummery suggested that it               lish detriment merely by showing that they        take steps to avoid prejudicing their position
was not sensible in “most cases” of victimisa-       suffered mental distress. They would have         without exposing themselves to a claim of
tion to limit the grounds of appeal when the         to demonstrate that such distress was objec-      victimisation. However, an employer should
points raised tend to overlap.                       tively reasonable in all the circumstances.       act in a way which does not penalise or preju-
    Lord Justice Parker stated that an attempt       Distress and worry which may induced by           dice its worker for them having commenced
by a defendant employer to compromise pend-          the employer’s honest and reasonable conduct      or continued with their action. Whether an
ing proceedings brought against it by a worker       in the course of its defence could not, save in   employer has subjected its worker to a detri-
did not necessarily amount to discrimination         the most unusual circumstances, constitute        ment must be considered from the view of
by way of victimisation. Instead, the issue          detriment.                                        the worker.
was whether the writing of the letters was an            Having considered this, one could not say         Where a worker mounts a claim for
honest and reasonable attempt to compromise          that the tribunal reached a decision that no      discrimination or equal pay, their employer
the proceedings, per Khan. He agreed with            tribunal, properly directed, could reach. The     should be entitled to send them a letter point-
Lord Justice Lloyd that an employer’s objective      council went further than was reasonable as       ing out the possible consequences with a view
of persuading a claimant to settle to avoid an       a means of protecting its interests.              to reaching a settlement. Such correspond-
adjudication did not, of itself, fall outside the        In addition, the reason for adverse treat-    ence should be measured and addressed to
scope of the freedom to conduct a defence in         ment could be the continuation as well as         the claimant’s lawyers or union. Respond-
an honest and reasonable manner.                     the commencement of proceedings. It would         ents would be well advised not to send costs
    Mummery LJ dissented. He agreed that the         make no sense to prevent an employer from         threats, or even warnings, to litigants in
council was entitled to take reasonable steps to     treating a worker badly because they had          person. An employer should bear in mind
protect its position in litigation without render-   brought proceedings but not to prevent the        that the question of whether or not such
ing itself liable for victimisation. However, the    employer from treating the worker badly           behaviour results in a detriment would be
employment tribunal was entitled to consider         because they continued them.                      considered from the worker’s perspective.
the circumstances surrounding the letters to                                                               This judgment will not be limited to
determine the council’s reasons for sending          THE POSITION NOW                                  claims of victimisation arising from sex
them. Here, the objection was to the particular                                                        discrimination. It should apply in all simi-
means by which the council sought to achieve         The decision of the EAT was considered by         lar matters arising from discrimination and
a settlement. It went further than was reason-       some to be a recipe for disaster. There was       victimisation provisions in all other areas. An
able as a means of protecting its interests. Its     concern that many actions might cause a           employer would be well advised to take care
behaviour tipped the balance.                        claimant to be treated less favourably. The       in the phrase and tone that it adopts towards
                                                     council had suggested that all public comment     its workers in correspondence. Otherwise, it
FOCUS ON DETRIMENT                                   to staff by respondents who were resisting an     may end up with just desserts.
                                                     action on discrimination or equal pay could
The council was forced to eat humble pie             become actionable if it caused distress to the    Elliot Gold is a barrister at 5 Essex Court
when the House of Lords restored the deci-           claimants. In response, the EAT said only         chambers. E-mail: gold@5essexcourt.
sion of the employment tribunal, restating           that each case turned on its own facts. 

NEW LAW JOURNAL 15 June 2007                                                                                                            847

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