Derbyshire and others v St Helens Metropolitan Borough Council

Correspondence was not victimisation
Derbyshire and others v St Helens Metropolitan Borough Council, Court of Appeal, July 2005

In 1998, 510 female catering staff brought equal pay claims against St Helens Metropolitan Borough Council, most of which were subsequently settled. However, 39 proceeded with their claims.

About three months before the claims were heard, the council wrote to all catering staff stating that continuing the litigation would have a severe impact on all staff and the increased cost of providing the catering services could result in job losses. Individual letters reiterating the council’s concerns were also sent directly to the 39 claimants even though they were legally represented.

Their claims succeeded.

They then pursued successful claims of victimisation under section 4 of the Sex Discrimination Act 1975 (SDA), arguing that the letters had caused distress and they had been subjected to a detriment by being made to feel responsible for the potential loss of colleagues’ jobs. The Employment Appeal Tribunal (EAT) upheld this decision.

However, the council successfully appealed to the Court of Appeal against the EAT decision. It argued that victimisation under the SDA required more than writing a letter or making critical comments specific to the litigation. Further, the tribunal had not fully considered established case law whereby an employer could take reasonable steps to protect its position in litigation without infringing the victimisation provisions. By sending the letters, the council had intended to persuade the claimants to settle their claims, but this did not necessarily constitute discrimination. The issue to determine was whether the council’s conduct had been an honest and reasonable attempt to settle the matter. The case was, therefore, remitted to the same employment tribunal.

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