Evading the question
Labour & European Law Review Weekly Issue 226 14 July 2011
The law says that tribunals can draw inferences from evasive answers given by respondents in questionnaires when defending claims of discrimination. In Deer v Walford and the University of Oxford, the Employment Appeal Tribunal (EAT) said that even if the answers are less than complete, it does not necessarily follow that they should be characterised as “evasive or equivocal”.
Ms Deer, an academic, decided in December 2008 to apply for a junior research fellowship and asked her former D.Phil supervisor, Professor Walford, for a reference.
He initially agreed but, having read the criteria for the application, he said there was no point as she didn’t have a chance. She was very upset and decided that the real reason for his refusal was because he knew about an earlier sex discrimination claim she had made against the university in 2007.
In February 2009 she served a sex discrimination questionnaire on him. He stated, among other things, that he had very little knowledge of her 2007 complaint (although it had had widespread media coverage), except that it had some link to the university. He also said that he supplied very few references every year, that he had refused references in the past if he felt he could not support them and that he did not keep copies of them.
Ms Deer argued that the tribunal should infer from the hostile tone of his e-mail refusing to supply a reference that Professor Walford knew more about her previous claim than he admitted. She also claimed that his refusal to provide evidence of previous refusals was evasive.
The tribunal, however, did not agree. It said that the reason Professor Walford refused the reference was “transparently genuine” and nothing to do with the fact that Ms Deer had taken proceedings against the university.
It said that a hypothetical comparator who had made a similar request for a reference in support of a fellowship and who had had little contact with their professor for eight years but had not brought a claim against the university, would have been treated the same way.
It said she should have realised that her claim had no prospect of success, but instead she resorted to making “scandalous” and “unsubstantiated allegations against a disparate group of employees of the University, including its solicitors”. It therefore awarded costs against her.
And the EAT agreed. It said that, far from being evasive, Professor Walford’s answers were “clear, straightforward and indeed unsurprising”. But even if they had been “less full than they should have been”, it did not necessarily follow that they should be characterised as “evasive or equivocal.”
It said that the process to decide what, if any, inference should be drawn in the case of an evasive or equivocal answer was no different from any other case involving an inference of discriminatory behaviour. “The question is always whether, in the circumstances of the particular case, the act or omission in question tends to show that the respondent acted in the way complained of – typically that he [sic] acted with a discriminatory motivation”.
As for the appeal against costs, the EAT said the tribunal order was justified as Ms Deer had “brought an expensive and damaging claim against Professor Walford and the University based on nothing more than an implausible speculation and had persisted in it after a clear warning from the Tribunal”.