A person (A) discriminates by way of victimisation under section 4(1)(a) Sex Discrimination Act 1975 (SDA) if he treats another person (B) less favourably by reason that:
(a) B has carried out a ‘protected act’;
(b) A knows that B intends to carry out a protected act; or
(c) A suspects that B has carried out or intends to carry out a protected act.
Protected acts include bringing proceedings under the Equal Pay Act 1970.
A number of female catering staff brought equal pay claims against their employer, St Helens Borough Council. Although many of the claims were settled, 39 employees did not settle and proceeded with their claims. The Council wrote to all catering staff explaining that if it lost the pending litigation, it would be forced to consider making job cuts and this would have a ‘severe impact on all staff’. The Council also stated in the letter that settlement was still an option for the claimants. The claimants brought a further claim against the Council for victimisation under the SDA (see above).
The House of Lords upheld the Tribunal’s original decision, that the Council’s letter amounted to victimisation.
The treatment of the claimants should be compared with treatment of other employees who had not carried out a protected act, in this case those who had not brought equal pay claims against the Council. The reason the Council sent the letters was to put pressure on the claimants to settle their claims and this amounted to less favourable treatment.
The House of Lords found that the claimants had suffered a detriment as a result of the less favourable treatment. The question of whether the claimants had suffered a detriment should be judged by looking at the claimants’ right to pursue their claims. Although an employer is entitled to take reasonable steps to defend itself in litigation, it must not do anything which might make a reasonable employee feel she is being unduly pressured not to pursue her claim. Here the pressure arose from a fear of public hatred and reproaches from colleagues.
What this means for employers
Although this case concerns sex discrimination, victimisation applies to all forms of discrimination including age, disability, race etc. Employers should therefore take care when communicating or corresponding with, or about, employees who are bringing or likely to bring proceedings against them for discrimination. This will include circumstances where an employee has made informal complaints or raised a grievance alleging discriminatory treatment.
Employers should ensure that they do not make threats (or make a statement which could be interpreted as a threat) about the potential consequences, commercial or otherwise, of the employee commencing or continuing with such litigation.