Bird and Sylvester and anor
The law states that employers must not victimise employees who have brought a discrimination claim against them. In Bird and Sylvester and anor (2008, IRLR 232), the Court of Appeal said that threatening an employee with a costs order does not amount to victimisation.
Basic facts
Ms Bird was employed by Mr Sylvester as his receptionist/housekeeper from February 2001 until December 2005. In March 2005 she brought a claim of race discrimination against him. In July Mr Sylvester’s solicitors wrote and told her that they would be seeking a costs order against her if she was unsuccessful.
The tribunal dismissed her claim and Mr Sylvester’s solicitors sought to impose the costs order. At the same time, however, they offered to pay half the amount if she resigned, apologised to two other members of staff and agreed not to appeal. She refused to agree the terms of the compromise deal.
In October and December 2005 Mr Sylvester threatened to take disciplinary action against her. She responded by issuing a grievance and then resigned on 22 December.
In March 2006 she brought another claim, this time against both Mr Sylvester and his solicitors, alleging that the costs application and the threat of disciplinary proceedings amounted to victimisation under the Race Relations Act 1976. Mr Sylvester applied to strike out her claims.
Relevant law
Section 2(1) of the Race Relations Act 1976 (RRA) says that it is victimisation for an employer to treat someone less favourably than they would treat someone else in the same circumstances because the victimised person had brought proceedings against them under the RRA.
Section 33 (1) of the Race Relations Act 1976 says, among other things, that if someone “knowingly aids another person to do an act made unlawful by this Act”, they will be treated as though they had done the unlawful act themselves.
Tribunal and EAT decisions
The tribunal struck out all her claims, except for the threat to take disciplinary action against her. It said that Mr Sylvester had been perfectly entitled to issue an application for costs as well as to propose settlement terms.
It also struck out all her claims against Mr Sylvester’s solicitors, saying that it would be contrary “to public policy for a professional firm of solicitors to be at risk of becoming a respondent to proceedings simply by writing letters setting out the proposed course of action by their client the employer, which the employee considers amounts to an act of discrimination or victimisation.”
The EAT dismissed Ms Bird’s appeal and she appealed again, saying the tribunal had failed to take account of the House of Lords decision in Derbyshire v St Helens Metropolitan Borough Council which requires tribunals to look at the issue “from the perspective of the alleged victim”.
Court of Appeal decision
The Court of Appeal, however, agreed with both the tribunal and the EAT that her criticisms were misplaced.
Relying on the decision in Chief Constable of West Yorkshire Police v Khan, the Court said that once proceedings have started, the “adversarial relationship may reasonably cause the employer to behave in a way which treats the employee less favourably than someone who had not commenced such proceedings. But the treatment need not be, consciously or unconsciously, a response to the commencement of proceedings. It may simply be a reasonable response to the need to protect the employer's interests as a party to the litigation.'
On that basis, the October letter offering a compromise settlement “was a perfectly reasonable and proper act in the context of the case” and any “reasonable employee” could not have reached any other conclusion.
As for the role of the solicitors the Court said that “It is clear beyond the possibility of rational contest that the decision to take disciplinary proceedings was and was only that of the client. “ Although his solicitors may have advised Mr Sylvester to pursue the proceedings, that did not mean they were responsible for the decision to take disciplinary proceedings. Their role as advisers did not, therefore, bring them within the scope of section 33 RRA.