Risk of victimisation when attempting to settle legal proceedings

The House of Lords has held that letters sent by St Helens Borough Council to a group of emoployees warning them of serious consequences for the council if their equal pay claims were successful, amounted to victimisation under the Sex Discrimination Act 1975.

The case concerned a group of school dinner staff who were making equal pay claims against the council. Most settled their claims, but a group did not accept the terms of the settlement and decided to gl ahead with their tribunal claims.

Threat of redundancies

Before the tribunal hearing, the council sent a letter to all staff, including the claimants, stating that if successful, the cost of the claims would mean that it would be forced to consider ending the provision of school meals to all except those children who were legally entitled to them, and that this would lead to redundancies. The council said that if the claims continued, all staff would be affected, not just the claimants. It sent a separate letter to each of the claimants again warning of the consequences of a tribunal decision against the council, and encouraging them to settle.

The claimants were distressed by the letters and their colleagues’ reactions to them. They brought claims alleging that sending the letters amounted to an unlawful act of victimisation. The council said that it was entitled to write the letters in the course of litigation to point out the consequences if the claims went ahead.

Claims upheld

The tribunal agreed with the claimants and upheld their claims, finding that although an employer has a right to protect itself in litigation, the council’s actions went further than this in that they were an attempt to intimidate the claimants into abandoning their claims.

The council appealed to the EAT which upheld the tribunal decision. The council appealed again and the Court of Appeal overturned the tribunal and EAT decisions. It said that taking action to persuade employees to abandon claims did not necessarily constitute victimisation, and that the matter should go back to the tribunal to decide whether the council’s actiions were honest and reasonable in this case.

The House of Lords reinstated the tribunal and EAT decisions.

Key points

A victimisation claim can be brought whenever an employee has taken a case of discrimination (or equal pay claim) to a tribunal, or given evidence in a case, or made an allegation of discrimination in good faith, and where the employee has been treated less favourably as a result.

An employer may make honest and reasonable attempts to settle a claim (Chief Constable of West Yorkshire Police v Khan), but the council had gone too far in this case.

The letters were sent to put pressure on the claimants to settle and made the claimants fearful of the reproaches of colleagues. This went further than reasonable to protect the council’s interests and as such amounted to victimisation.

What you should do

Employers must always be alert to the risk of victimisation claims when discrimination has been alleged, particularly in the course of litigation.

Honest and reasonable attempts to settle litigation are acceptable, but employers should avoid doing anything that may put undue pressure on an employee to settle.

Employers should negotiate with trade union representatives or legal advisers and avoid communicating directly with claimants about the litigation.

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