St Helens MBC v Derbyshire and ors
Section 4 of the 1975 Sex Discrimination Act says that victimising someone for bringing a claim under the Equal Pay Act is, in itself, a discriminatory act.
In St Helens MBC v Derbyshire and ors (LELR 94 and 103), the House of Lords said that the women were victimised by their employer when they were sent letters warning them of the implications for the school meal service if they continued with their equal pay claims.
The women's union - the GMB - instructed Thompsons to act on their behalf.
Basic facts
Almost 500 female catering staff brought equal pay claims against the Council in 1998. The vast majority settled, but 39 (including Mrs Derbyshire) successfully pursued their claim.
However, two months before their claim was heard in 2001, they received a letter from the Council, asking them to withdraw and warning them that it could not absorb the cost of their claims. The second (sent to all catering staff) warned that the cost of school meals would rise and everyone's job would be at risk, if the 39 were successful.
The women were distressed by the letters, but the Council justified them by saying that the purpose was to get the women "to face facts and to take a responsible view of reality".
Decisions of lower courts
The original tribunal dismissed the women's claim, but the employment appeal tribunal (EAT) allowed their appeal and remitted the case to a second tribunal, which said in September 2003 they had been treated less favourably by the Council.
The Council appealed against that decision and the second EAT dismissed their appeal, saying that the women had been penalised for exercising their statutory rights. The Council appealed again to the Court of Appeal.
It agreed with the employment tribunal that the women had been treated less favourably and that they had been subject to a detriment, but disagreed they had been victimised.
It relied on the decision in Chief Constable of West Yorkshire Police v Khan, in which the House of Lords said that “employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimization.”
On that basis, the Court could see no reason why an employer facing equal pay proceedings could not take steps to try to persuade the women to settle the claim without infringing the victimisation provisions.
Decision of the House of Lords
The Lords, however, agreed with the tribunal that the women had been victimised and restored the decision of the second tribunal. They said that although employers had a right to send out letters pointing out the possible consequences of a successful claim, the letter sent by the Council was “intimidating”
It pointed out that there was no “honest and reasonable” defence in the Equal Pay Act itself and that the issue of victimisation should be decided from the perspective of the alleged victim, rather than concentrating on the “purpose of the alleged discriminator”. This was the position both under section 4 of the Sex Discrimination Act and European case law, in particular Coote v Granada Hospitality.
The Council was entitled to seek a settlement of the proceedings, but the means it used were not appropriate. It could have achieved a settlement “by other means that were reasonable, such as negotiations with the Applicants’ union or their legal representatives. The Council went further than was reasonable as a means of protecting its interests in the existing litigation and the reason for it doing so was, the tribunal found, that the Applicants had brought the equal pay claims against the Council and were continuing to bring them”.