Veitch Penny LLP - Exeter | Crediton, Devon

Case

St Helens Metropolitan Borough Council v Derbyshire
House of Lords

Issues

(1) Sex Discrimination
(2) Victimisation
(3) Settlement Negotiations

Facts

A number of women were employed by the employer Council in its school meals service, and they made claims against their employer under the equal pay legislation. A proportion of the claimants did not agree to a proposed settlement. As the hearing of the Tribunal came closer, the Council wrote two letters. The first letter was sent to all the catering staff warning that if the claims were pursued and successful, it could lead to closure of the school meals service. A second letter was sent directly to each claimant, warning them of “the impact that the current course of action will have on the service and everyone employed in it”. An issue arose as to whether these letters amounted to unlawful victimisation of the claimants.

Decision

At first instance, the Tribunal concluded that the letters were intimidating and had caused distress as a consequence of the equal pay proceedings that they had brought. This fell within the definition of victimisation.

On appeal, the Employment Appeal Tribunal agreed. The principles set out in the case of the Chief Constable of West Yorkshire Police v Khan were applied. The case stated that there would be no victimisation if by its actions the employer was merely taking “honest and reasonable steps to protect its position in litigation” and this could extend to a case where an employer is trying to persuade the employee to abandon a claim.

The Court of Appeal Judgment ultimately overturned by the House of Lords. The judges hearing the case were concerned about the test to be applied in the Khan case. It was felt that in each case, the evidence needed to be judged from the perspective of the claimant and not from the position of the employer. Whilst it was confirmed that a Claimant cannot establish detriment merely by showing that mental distress has been suffered, it was agreed that the Employment Tribunal was correct to find that the Council had gone further than reasonable in order to protect its own interests.

Comments

This case highlights the risk of employers communicating directly with employees about pending cases. Employers must avoid anything which could be reasonably regarded as making the employee feel intimidated. An employer must objectively consider its actions from the point of view of a potential Tribunal hearing. The most prudent course of action to avoid an allegation of victimisation may be for an employer to instruct a Solicitor to communicate with the claimant on their behalf.

Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.