Victimisation - crossing the line of reasonableness
Author: Darren Newman
Consultant editor Darren Newman considers an important House of Lords decision on victimisation, in which it was held that the employer went further than was reasonable in seeking to protect its interests.
That an employee who makes an allegation of discrimination should not be victimised for doing so is a principle with which few people would quibble. However, the right not to be victimised can cause practical problems for even the most responsible of employers.
In St Helens Metropolitan Borough Council v Derbyshire and others [2007] UKHL 16, the House of Lords held that the council victimised a number of female employees who had brought - and subsequently won - equal pay claims against it. In the course of trying to reach a settlement, the employer had written to the employees and their colleagues warning that, if the case went to tribunal, this would have a "severe impact on all staff". The letters also strongly hinted that the expense of meeting a tribunal award would lead to job losses.
There is no doubt that the employer was seriously concerned by the financial consequences of the claims it was facing. Large-scale equal pay claims are causing major problems for public sector employers all over the country, and the employer in this case had invested several million pounds in a fund designed to settle all the claims it faced. While many claimants had settled, the employees in question had held out - assisted by their no-win, no-fee lawyers - and it was frustration at this situation that had led the employer to write the letters. They were, nevertheless, clearly designed to put pressure on the employees to settle by exposing them to the opprobrium of their colleagues and suggesting that they were putting their own selfish concerns ahead of the interests of the workforce as a whole. The question for the House of Lords was whether this amounted to victimisation or whether the employer was entitled to put pressure on the claimants to reach a settlement.
The Lords made it clear that the issue in victimisation cases is whether or not the claimant has been subjected to a detriment because he or she has complained of discrimination. A detriment is something that a reasonable employee might consider to be detrimental, and the Lords quote another House of Lords decision - Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 - as establishing that "an unjustified sense of grievance" cannot amount to a detriment. Lord Neuberger points out that a certain amount of mental distress is inherent in any allegation of discrimination, and concludes that distress and worry induced by the employer's honest and reasonable conduct in the course of defending a claim or attempting to reach a settlement would not usually constitute a detriment. In the course of settlement negotiations it may, therefore, be appropriate for the employer to make the sort of point made in this case to legal representatives. While it would be water off a duck's back to them, sending the letters directly to the employees affected crossed the line of reasonableness.
In the future, employers are likely to be careful about how they communicate with their staff on issues relating to ongoing discrimination cases. The temptation may be to counter the rumour mill by making a strong statement of defence. An announcement that the employer is "vigorously contesting" the proceedings would seem to be a reasonable statement to make - assuming that it is accurate - particularly where the allegation of discrimination carries with it an implication of improper conduct or malicious motives. However, any direct attack on the employee bringing the claim, or coded message that the claim will have a detrimental impact on staff as a whole, will almost certainly be a step too far. In many cases, the employer may feel that maintaining a dignified silence on the issue is the best way forward.
