The Housing Corporation v Bryant [1999] ICR 123
Lewis v Blue Arrow Care Ltd EAT [1999] ICR
In a worrying decision, the Court of Appeal, in the Housing Corporation v Bryant, find that, in order for a worker to argue that she or he has been victimised in a sex or race discrimination claim, they must show a 'causative link' in the originating application between the protected act and the subsequent detriment suffered.
This is an instance of the Court of Appeal taking an over-legalistic approach to Tribunal applications, which is inconsistent with, for example, recent decisions which suggest that a claim for race discrimination will automatically incorporate any claim for race discrimination, whether direct or indirect.
Ms Bryant complained to her employer that, during an interview, the employer's regional director had made offensive and inappropriate comments of a sexual nature to her. She was sent a letter which acknowledged that the comments had been contrary to the employer's equal opportunity policy. Two weeks later, Ms Bryant was informed that she was to be dismissed in three months' time.
Ms Bryant made complaints to the Employment Tribunal of unfair dismissal and sex discrimination. She set out in detail the events leading up to the termination of her employment, but she did not use the word 'victimisation', and she also did not expressly state that, in her contention, her dismissal was on account of her having carried out a "protected act", that is her making the complaint concerning inappropriate comments of a sexual nature.
When Ms Bryant attempted to amend her originating application to include a claim of victimisation, the Employment Tribunal refused her permission. The reason was that the originating application itself had not disclosed any grounds for a claim of victimisation and the application, essentially to add a fresh claim, was by then out of time. Although the Employment Appeal Tribunal overruled the Employment Tribunal's decision, the Court of Appeal reinstated it.
According to the Court of Appeal, unless the originating application demonstrated a 'causative link' between the making of the allegations of sex discrimination and the dismissal, then it did not encompass a claim of victimisation.
The decision has already been followed in Lewis v Blue Arrow Limited, where an Applicant was refused leave to add a claim of victimisation to a pre-existing claim of race discrimination on the ground that it was out of time and it would not be just and equitable to extend time.
Great care must be taken in drafting originating applications where there is a complaint of victimisation. It will be essential to cite victimisation in Box 1 in the IT1. It will be helpful to identify the 'protected act' and then allege specifically that the detriment suffered was on account of the performance of the protected act in the full details of complaint in Box 10.
In the absence of an express causative link, it is likely that a Tribunal will find that the claim is one only of direct discrimination and any subsequent attempt to amend to include a claim of victimisation may well be treated as out of time.