St Helens Metropolitan Borough Council v Derbyshire & others
Victimisation: a genuine attempt to compromise proceedings or victimisation?
St Helens Metropolitan Borough Council was the recipient of 510 equal pay claims brought by female catering staff (Derbyshire & others) in 1998. The council settled the majority of the claims but 40 employees pursued their claims to tribunal.
Before the tribunal hearing, the council sent letters to all catering staff warning that if the claims went ahead and were successful, the increased salary costs would make the provision of the catering service unviable and would lead to redundancies. The council wrote to the 40 remaining claimants urging them to reconsider the settlement and reminding them that the council could not withstand the cost of a successful tribunal result.
The claimants argued that the letters caused distress and soured relations between them and their colleagues, and as such amounted to unlawful victimisation. The council said the letters were written in the course of litigation and it was entitled to do so.
The tribunal and EAT decided that the council’s actions did amount to unlawful victimisation. However, the Court of Appeal said that the tribunal had applied the wrong test. It said it should have looked for the real motive or reason for the treatment, bearing in mind that the parties were locked in litigation. The case of Chief Constable of West Yorkshire Policy v Khan decided that it is open to an employer to take reasonable steps to preserve its position in discrimination proceedings without risking a victimisation complaint. The council was free to conduct its defence in an honest and reasonable manner.
This case has been sent back to the tribunal to determine whether the council’s actions fell within the scope of the Khan principle. It is worth noting, however, that one of the Court of Appeal judges felt that the fact that the council had written to all members of the catering staff directly, and not just the claimants, pointed away from this being a reasonable attempt to compromise the proceedings. The tribunal may well take a similar view when reconsidering its decision.
It is open to an employer to take reasonable steps to preserve its position in discrimination proceedings without risking a victimisation complaint. Employers are entitled to defend litigation in an honest and reasonable manner.
There is a fine line between conducting an honest and reasonable defence and committing an act of victimisation.
What you should do
- Exercise caution in your litigation tactics against existing employees, to avoid further claims of victimisation. Victimisation claims can succeed even where the original claim of discrimination has failed
- Do not isolate employees who have brought claims from their colleagues. If you need to inform other employees of the status of ongoing litigation, do so in a factual and neutral manner.