Factual and Procedural Background
This is an appeal against a decision of an Employment Tribunal sitting at London Central, chaired by Employment Judge Potter, which upheld the Claimant's claim that she was victimised by the Appellants contrary to the Sex Discrimination Act 1975. The claims were heard over four days in December 2008, with judgment sent on 6 January 2009 and written reasons on 13 February 2009. Other claims by the Claimant against the Appellants and a third party were dismissed.
The Claimant, a solicitor, was employed from 1999 to 2004 at a firm called Witham Weld in Pimlico, where she worked in the dispute resolution department managed by the Second Appellant. Towards the end of her employment, various problems arose including a personality clash and issues regarding admission to equity partnership. She resigned in early 2004 and brought proceedings alleging unfair dismissal and sex discrimination.
In 2004, the Claimant obtained employment with Carter Bells and required a reference from Witham Weld, which was provided by the Second Appellant in bland terms. A notable incident occurred in November 2004 when the Claimant's father's car crashed into the Second Appellant’s car, causing damage, which the Claimant maintained was coincidental.
The Claimant’s claim against Witham Weld was settled in February 2005 using the COT 3 procedure, including a term that Witham Weld would provide references consistent with those already given.
The Claimant was made redundant by Carter Bells in early 2008 and applied for a job with a firm called Sebastians. She was offered employment subject to satisfactory references, including one from the Second Appellant, now a partner in the merged firm Pothecary Witham Weld (PWW), the First Appellant.
The reference given by the Second Appellant in April 2008 was less favourable than the earlier one, mentioning poor relationships with partners, the fact that she had brought employment tribunal proceedings, and that she could be inflexible in opinions. This caused concern at Sebastians, leading to a probationary condition on the job offer, which the Claimant perceived as a withdrawal of the original offer.
The Claimant protested to the Second Appellant, who offered a meeting under statutory grievance procedures. The meeting on 15 May 2008 was difficult and heated, with both parties behaving inappropriately.
On 20 May 2008, the Claimant commenced proceedings against PWW, the Second Appellant, and Sebastians alleging victimisation contrary to the Sex Discrimination Act and breach of contract. The Employment Tribunal upheld the victimisation claims against all three Respondents but dismissed other claims. The Tribunal applied the reverse burden of proof provisions of s. 63A of the 1975 Act.
PWW and the Second Appellant appealed on limited points. Sebastians did not appeal and settled with the Claimant. The appeal hearing in August 2009 was adjourned due to the introduction of a new "vires" point concerning the validity of s. 63A, and the Equality and Human Rights Commission was invited to intervene.
The adjourned hearing occurred in November 2009, with the same parties represented and the Commission participating. The Claimant was later awarded £7,500 for injury to feelings, with that award currently stayed pending the liability appeal.
Legal Issues Presented
- Whether the reference given by the Second Appellant constituted victimisation contrary to the Sex Discrimination Act 1975.
- Whether the reverse burden of proof provisions in s. 63A of the 1975 Act apply to claims of victimisation.
- Whether the Tribunal correctly applied the legal tests for victimisation, including the interpretation of "detriment" and "by reason that" in light of relevant case law.
- Whether the "vires point" challenges the validity of the 2001 Regulations that inserted s. 63A as ultra vires.
- Whether the conduct at the grievance meeting of 15 May 2008 constituted victimisation.
Arguments of the Parties
Appellants' Arguments
- The Tribunal failed to make a specific finding on the Second Appellant’s intention in mentioning the Claimant’s previous employment tribunal proceedings in the reference.
- The Tribunal misapplied section 4 of the Sex Discrimination Act 1975 and the detriment test from Derbyshire v St Helens Metropolitan Borough Council.
- The Tribunal wrongly applied the tests from Derbyshire and Khan alongside s. 63A of the Act.
- The application of s. 63A to victimisation claims was incorrect.
- There was a failure to find whether the grievance meeting conduct constituted victimisation.
- They contended that s. 63A was ultra vires as the 2001 Regulations exceeded the Secretary of State's powers under the European Communities Act 1972 (the "vires point").
Claimant's Arguments
- The Tribunal’s findings on victimisation and the application of the reverse burden of proof were correct.
- The reference given was influenced by the Claimant’s protected act of bringing proceedings, constituting less favourable treatment and detriment.
- The "vires point" was not properly before the Tribunal and should not be allowed as a new ground of appeal.
- The grievance meeting was alleged to be victimising conduct, but the Claimant did not rely on it for remedy appeal.
Equality and Human Rights Commission's Submissions
- Supported the application of s. 63A to victimisation claims.
- Addressed the vires point and the effect of relevant House of Lords decisions.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Nagarajan v. London Regional Transport [1999] ICR 877 |
Defines "by reason that" as requiring consideration of employer's conscious or unconscious motivation; establishes approach to victimisation as a form of discrimination. |
Applied to determine whether the protected act had a significant influence on the employer's conduct, establishing victimisation. |
| Chief Constable of West Yorkshire v. Khan [2001] ICR 1065 |
Clarifies that "by reason that" is a subjective test of motivation, not a legal causation test; allows employer to take reasonable steps to protect position in litigation without victimising. |
Distinguished from present case as no ongoing litigation at time of reference; Court rejected overly technical distinction between employer and litigant roles. |
| Derbyshire v. St Helens Metropolitan Borough Council [2007] ICR 841 |
Examines "detriment" and "honest and reasonable" employer test in victimisation claims; focuses on objective reasonableness of detriment suffered. |
Used by Tribunal to assess whether reference and conduct caused detriment; Court emphasized victim's perspective on detriment. |
| Oyarce v. Cheshire County Council [2008] ICR 1179 |
Held that reverse burden of proof provisions in Race Relations Act 1976 do not apply to victimisation claims under that Act. |
Appellants initially relied on this to argue against s. 63A application; Tribunal rejected extension of Oyarce reasoning to Sex Discrimination Act s. 63A. |
| British Medical Association v Chaudhary [2007] IRLR 800 |
Reaffirmed that employer does not discriminate if acting to protect itself in litigation. |
Referenced in discussion of Khan and Derbyshire but not central to Tribunal's decision. |
| Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 |
Sets precedent on permission to raise new points on appeal. |
Considered in deciding whether to allow the vires point to be raised; permission refused. |
| Oakley Inc v. Animal Ltd [2006] Ch 337 |
Interpretation of powers under European Communities Act 1972 s. 2(2)(b) allowing related measures to implement Community obligations. |
Supported argument that s. 63A's application to victimisation claims was a permissible closely related legislative choice. |
| Coote v Granada Hospitality Ltd [1999] ICR 100 |
EU Court of Justice held that protections against victimisation are necessary to ensure effective judicial protection of discrimination rights. |
Commission relied on this to argue for inclusion of victimisation in the burden of proof provisions; Court found it persuasive but distinguished scope. |
Court's Reasoning and Analysis
The Court began by summarising the factual matrix and procedural history, noting that the Tribunal had found the Claimant victimised by the Appellants through the terms of a reference and conduct during a grievance meeting. The Tribunal applied the reverse burden of proof under s. 63A of the 1975 Act, which shifted the burden to the Appellants to show the less favourable treatment was unrelated to the protected act.
The Court reviewed the statutory provisions, particularly sections 4 and 20A of the Sex Discrimination Act 1975, defining victimisation and detriment. It acknowledged that victimisation is a sub-species of discrimination under the Act.
The Court analysed relevant case law, particularly the House of Lords decisions in Nagarajan, Khan, and Derbyshire. It found the Tribunal's reliance on Khan and Derbyshire somewhat misplaced as those cases concern employer conduct aimed at protecting litigation positions, which was not the situation here. Instead, the Court favoured the straightforward approach in Nagarajan focusing on whether the protected act had a significant influence on the employer's conduct.
The Tribunal's factual findings, including hostility by the Second Appellant and the more negative reference after proceedings ended, supported a prima facie case of victimisation. The Appellants failed to discharge the burden of proof that the reference was not influenced by the protected act.
The Court rejected the Appellants' argument that the Tribunal erred by not expressly accepting or rejecting the Second Appellant’s explanation for the reference wording, emphasizing that under s. 63A it suffices that the explanation was not convincing enough to discharge the burden.
Regarding the application of s. 63A to victimisation claims, the Court distinguished the reasoning in Oyarce (which concerned the Race Relations Act) and found that s. 63A of the Sex Discrimination Act clearly applies to victimisation claims, consistent with statutory construction and policy considerations.
On the vires point, the Court considered whether the 2001 Regulations inserting s. 63A were ultra vires the powers granted by the European Communities Act 1972. It analysed the relevant EU Directives, including the Burden of Proof Directive and Equal Treatment Directive, and concluded that although the Directive did not expressly require reverse burden of proof for victimisation claims, the UK was entitled to adopt more favourable evidential rules. The Court found the Regulations valid as a closely related legislative choice and refused permission to amend the appeal to raise the vires point.
The Court noted some ambiguity in the Tribunal’s findings regarding whether the grievance meeting constituted victimisation but found this issue immaterial as it was not relied on for remedy.
Holding and Implications
The Court DISMISSED the appeal by PWW and the Second Appellant.
The Tribunal’s decision upholding the Claimant’s victimisation claim was affirmed, including the application of the reverse burden of proof under s. 63A of the Sex Discrimination Act 1975 to victimisation claims. The Appellants’ arguments that the Tribunal misapplied legal tests or that s. 63A was ultra vires were rejected. The Court refused permission to raise the vires point as a new ground of appeal.
The direct effect is that the Claimant's victimisation claim stands upheld, with no new precedent altering the established law beyond confirming the applicability of s. 63A to victimisation claims under the 1975 Act. The Court’s reasoning clarifies that in cases not involving employer conduct to protect litigation positions, the Nagarajan approach remains the appropriate test for victimisation.