Deer v University of Oxford

This is an appeal against a judgment of the Employment Appeal Tribunal (“the EAT”) in which it dismissed the claimant’s appeal against the decision of the Employment Tribunal which, at a pre-hearing review at Reading, had struck out various joined claims of victimisation discrimination.

The claimant is a former PhD student and ex-employee of the respondent. She was employed by the university from October 2000 to March 2008 as a contractual research fellow at an organisation known as SKOPE, based in the department of economics and department of education. In 2007 she brought a sex discrimination claim against the respondents relating to treatment she had received at the hands of the Respondent and the University Football Club. This was compromised in June 2008 on terms which included the payment of £25,000 to the claimant and also an agreed reference which the university undertook to provide. I will refer to this as “the settled claim”.

Between 2009 and 2011, that is after she had left the employment of the university, she presented five claims in the Employment Tribunal. In each she alleged that she had been victimised because she had advanced the settled claim and the subsequent claims. She alleged that in various respects the university had treated her less favourably than she would have been treated had she not initiated them.

There has been a somewhat chequered history of hearings before the Employment Tribunals and the EAT. I set out below only the chronology sufficient to identify what issues are still outstanding in this appeal.

The claims all arose from the refusal by the claimant’s doctoral supervisor, Professor Walford, to provide her with a reference. The claimant had been his student from 1996 to 2000, some eight years before she approached him for the reference for a Fellowship for which she wished to apply. He refused to provide one giving cogent reasons why he would not, and he advised her not to pursue the post. The claimant lodged an internal grievance complaining about his conduct. At the same time she instituted a claim before the Employment Tribunal (Claim 1) against both Professor Walford and the University. She alleged that Professor Walford had declined to provide the reference because he was influenced by his knowledge of the settled claim and the University was vicariously liable for this act of victimisation.

Whilst the internal grievance was still in progress, the claimant issued a second claim (Claim 2) on 1 June 2009, this time against the University alone. This alleged that the university had colluded with Professor Walford who, it was said, had been the university’s agent when declining the reference. The submission was that he could be an agent even if he did not know that she had initiated the settled claim.

On 30 July of that year the claimant was told that her grievance had not been upheld. She appealed that finding and her grievance appeal was rejected on 16 December 2009.

Meanwhile, on 30 October 2009 she had issued Claim 3 in which she alleged that the university had dealt with her grievance in a discriminatory way, victimising her because she had taken the settled claim and Claims 1 and 2 against them. There were various allegations to the effect that the investigation had been defective in particular respects and that certain avenues had not been properly explored.

On 15 March 2010 she issued Claim 4, a similar claim to Claim 3 but this time in respect of the grievance appeal. Again she alleged that she had been treated less favourably in the way in which the appeal had been conducted than she would have been had she not taken proceedings leading to the settled claim and initiated Claims 1 to 3.

In July 2010 the claimant asked the respondent to disclose certain documents or at least undertake to preserve them. She also made a request for personal information under the Data Protection Act which she accepted was to obtain materials primarily in furtherance of her outstanding legal claims. These claims had by then been stayed. The university refused to provide these documents on the grounds that it was preserving its position in the ongoing litigation.

That led to Claim 5 on 24 January 2011, in which the appellant alleged that the real reason, or at least a reason, for refusing to provide or at least undertake to preserve the material was that she had pursued the settled claim and Claims 1 to 4.

The first two claims have now been dismissed. The first claim was heard by the Employment Tribunal in February 2010 and it was dismissed with costs awarded against the claimant and a full judgment was delivered on 17 March. The Tribunal found that she had failed even to establish a prima facie case of victimisation. There was no basis at all to link Professor Walford’s refusal to provide a reference with the fact that she had brought the settled claim. The Tribunal found that he knew nothing about it save for having a vague notion that she had been involved in a legal case over some dispute about football. They also rejected her submission that the Professor had made false and accusatory assumptions in his communications with her; on the contrary, they found that he had been trying to assist her. She sought to appeal that decision but the EAT refused permission, and her further challenge to the Court of Appeal was unsuccessful.

In the course of the Employment Tribunal proceedings she made allegations of collusion and conspiracy against various members of the university staff which the Tribunal found to be unfounded and unsubstantiated and which were in fact abandoned by her representative. Costs were awarded against her because of the unreasonable way in which she had conducted proceedings.

The other four claims were all considered by the Employment Tribunal at a pre- hearing review. A detailed judgment was issued on 19 July 2012. Employment Judge Barrowclough struck out each of the claims. As regards Claim 2, it was struck out on the basis of issue estoppel, or alternatively on the grounds that it would be an abuse of process for the claim to proceed because the claim ought to have been advanced at the same time as Claim 1.

Claims 3 and 4 were dismissed on the grounds that there had been no detriment. The Tribunal found that the dismissal of Claim 1 demonstrated that the grievance, which essentially repeated in the domestic forum the complaint advanced before the Tribunal in Claim 1, had no merit. Since it must be assumed in the light of the Employment Tribunal’s conclusions that the grievance would have failed however it had been conducted, and whatever procedure had been adopted, there was no detriment. Similarly, with respect to the grievance appeal. I analyse the reasoning of the Tribunal with respect to these two claims in more detail below.

As to Claim 5, that too was struck out on the basis that there was no real prospect of demonstrating any detriment as a result of the refusal to provide personal data. Again, I analyse that reasoning of the Tribunal more fully below.

On 10 July 2013 the EAT (HH Judge Clark presiding) upheld the appeal with respect to Claim 2, to the limited extent that he did not accept that the claim was subject to issue estoppel. However, Judge Clark did accept that the claim should be dismissed on the alternative abuse of process ground. He also dismissed the appeals on Claims 3 to 5, essentially for the reasons given by the Employment Tribunal.

The appellant appealed to this court. Lord Justice Underhill considered the applications on paper and granted permission to appeal in Claims 3 to 5 but refused permission with respect to Claim 2. The claimant renewed her application for leave to appeal in respect of that claim but it was rejected at an oral hearing before Lord Justice Moore-Bick.

It follows, therefore, that the only claims now being pursued in this appeal are Claims 3, 4 and 5.

The case concerns adverse treatment by reason of alleged victimisation. The current law is found in the Equality Act 2010 and this was the relevant law in force applicable to Claim 5, but the applicable legislation at the relevant time for Claims 3 and 4 was the Sex Discrimination Act 1975.

Section 4(1) of the 1975 Act is, so far as is material, as follows:

“A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and do so by reason that the person victimised has —

(a)

brought proceedings against the discriminator or any other person under this Act.”

The allegation here is that the university’s response to the handling of the grievance and the subsequent appeal involved the applicant being treated less favourably than she would have been treated if she had not taken the proceedings leading to the settled claim.

The appellant was not in fact an employee of the university when the alleged acts of discrimination occurred. Nevertheless the university is potentially liable under section 20A. This was inserted into the 1976 Act in 2003 for the express purpose of protecting ex-employees from acts of discrimination by their former employer (although the scope of the section extends beyond the employment relationship to what the section calls “relationships which have come to an end”). Amongst other matters, it renders it unlawful for the employer to discriminate by way of victimisation in a manner which subjects the ex-employee to a detriment.

It follows that in order to sustain a claim for victimisation discrimination, a claimant must show both that she has been subject to less favourable treatment, since that is necessary to establish the discrimination; and that she has suffered a detriment, since that is a requirement of the specific cause of action.

The concept of detriment is determined from the point of view of the claimant: a detriment exists if a reasonable person would or might take the view that the employer’s conduct had in all the circumstances been to her detriment; but an unjustified sense of grievance cannot amount to a detriment: see Derbyshire v St Helens MBC [2007] UKHL 16; [2007] ICR 841, para. 37 per Baroness Hale reciting earlier authorities.

In fact it seems to me - as it did to Underhill LJ as he said when granting permission to appeal - that although the concepts of less favourable treatment and detriment are distinct, there will be very few, if any, cases where less favourable treatment will be meted out and yet it will not result in a detriment. This is because being subject to an act of discrimination which causes, or is reasonably likely to cause, distress or upset will reasonably be perceived as a detriment by the person subject to the discrimination even if there are no other adverse consequences. That is perhaps more starkly the position in cases of discrimination on race or sex grounds where it can be readily seen that the act of discrimination of itself causes injury to feelings. But similar reasoning applies to victimisation discrimination. This is also an important protection for an employee or ex-employee, and a real and burning sense of injustice or unfairness may be experienced by someone who is discriminated against on this ground. It is perhaps possible that there may be evidence showing that in fact in a particular case the claimant did not suffer any sense of grievance or injustice notwithstanding less favourable treatment, but the normal inference would surely be that he or she did.

Claim 5 falls under the Equality Act. So far as is relevant, section 27(1) provides that:

“A person (A) victimises another person (B) if A subjects B to a detriment because -

(a)

B does a protected act...”

A protected act includes bringing proceedings under the Act: section 27(2). There is no concept of less favourable treatment as such in this formulation of the wrong. However, if a tribunal finds that the reason for particular conduct adverse to an employee is victimisation, there is implicit in that conclusion a finding that but for having taken the protected act, the employee would have been treated more favourably.

The question which then arises is how ex-employees are able to bring claims under the Act. The right to claim given to ex-employees is conferred by section 108 in terms which are similar to the former section 20A of the 1975 Act. However, that provision expressly applies only to acts of discrimination and under the Equality Act - unlike the Sex Discrimination Act - an act of victimisation is not defined as an act of discrimination but rather, in part 2 of the Act, as “other prohibited conduct”. The only other “other prohibited conduct” is harassment. That is specifically covered by section 108(2) but there is no corresponding provision to cater for victimisation. On the face of it, therefore, the draftsman has failed to cater for this situation in the 2010 Act.

Nonetheless, this court has recently held in Jessemey v Rowstock Ltd [2014] EWCA Civ 185 that this is one of those exceptional cases where the court can confidently say that the draftsman has erred and has, by an oversight, failed to reflect Parliament’s clear intention, and is in a position to remedy that error. Accordingly the statute was interpreted as conferring the right on ex-employees to take victimisation claims.

It is important to emphasise that Claims 3 and 4 were not struck out on the basis that they were scandalous or vexatious or had no reasonable prospect of success. The latter applies where it can be shown that the appellant would be unable to establish the facts alleged in her pleaded claim. Exceptionally, claims can be struck out on that basis, although the courts have emphasised that it is a very high test indeed: see the recent observations of Lady Smith giving judgment in the EAT in Balls v Downham Market High School and College [2011] IRLR 217 where she emphasised that the language is “no reasonable prospect”; it is not enough that the claim is likely to fail. Moreover, there is a particularly strong reluctance to strike out discrimination claims where the issue to be decided will almost inevitably depend upon disputed evidence: see Aynyanwu v South Bank Students Union [2001] IRLR 305.

In this case the claims were struck out on the basis that even if the claimant could establish the facts, her claim was still bound to fail. Ms McCafferty properly and frankly admitted in her submissions before us that this was the basis of her case. The Employment Tribunal had, therefore, dismissed the claims without any specific consideration of the merits of the argument that there were alleged defects in the grievance procedures. Essentially the same reasoning underpinned the striking out of Claims 3 and 4 but it was in certain respects different from the reasoning employed to justify striking out Claim 5.1 will consider Claim 5 separately.

The reasoning as regards Claims 3 and 4 is found in paragraphs 3.12 to 3.14 of the decision, which so far as is material, is as follows:

“3.12

The main thrust and focus of the Claimant’s grievance (for both Claims 3 & 4) was the refusal of Professor Walford to provide her with a reference, and what the Claimant alleged lay behind that refusal....

3.13

The hypothetical comparator is someone in substantially the same position as the Claimant, but who had not done the protected act. Accordingly, the comparator is someone who had brought a grievance to the Respondent primarily alleging that she had been refused a reference by a senior academic for a secret or hidden reason, and that the senior academic had conspired with colleagues against her; but where in fact the reason given for that refusal had been established as genuine, and no such collusion proved. In my judgment, there can be, as Ms McCafferty submits, no real prospect of someone who brought an equally unfounded grievance but who had not done a protected act being treated more favourably by the Respondent. The same reasoning must apply to the dismissal of the grievance appeal the subject of Claim 4. The Claimant’s ability to prove that she has suffered any detriment in the dismissal of either her grievance or the grievance appeal is also fatally undermined, since a detriment will only exist where a reasonable employee would or might take the view that the treatment received was to her detriment; and no reasonable employee could do so where the grievance/appeal were without foundation.

3.14

It must follow that, since in my view the Claimant has no reasonable prospect of establishing either detriment or less favourable treatment, these claims must be struck out. ...”

The premise of this analysis is that if the grievance is unfounded, there can be no prospect of establishing less favourable treatment and no detriment can be established.

The EAT upheld this approach again on the grounds that there was no reasonable prospect of establishing either a detriment or less favourable treatment: see per HH Judge Clark, para. 35. The same underlying concept sustains both elements of the decision: if the substantive grievance is in fact unfounded, it will not be possible to demonstrate that the comparator would have been treated any differently, or that the claimant had suffered any detriment.

The claimant submits that this reasoning is defective. It is no answer to her claim that the Employment Tribunal subsequently found that the appellant had no objective justification for feeling aggrieved. Her complaint to the Tribunal was not just that the outcome of the grievance process was tainted as a result of the discrimination. There is less favourable treatment amounting to victimisation discrimination if the procedures were handled in a different, less rigorous or less fair way than they would have been if the appellant had not lodged her complaint, irrespective of whether the grievance in fact had merit or not. Also, being subject to less favourable treatment and suffering the injured feelings consequent upon that treatment is itself a detriment.

Furthermore, Mr Segal submits that it is not necessarily legitimate to assume that a properly conducted grievance would come to the same conclusion as the Employment Tribunal. The internal procedures are more flexible and there will be some cases (although he accepts that this would not be one) where a grievance may be resolved in a manner not open to an employment tribunal, with the grievance body reaching a compromise solution which need not involve finding specifically or conclusively for one side or the other. In such cases the loss of that opportunity may properly constitute a detriment notwithstanding that the claimant’s case in the tribunal ultimately fails.

Ms McCafferty, in an impressive submission for the university, largely reiterated the argument which had found favour below. In essence, the submission was that where the substance of the grievance was so wholly without merit, as the Employment Tribunal effectively found was the case here, the process could not give rise to a detriment or less favourable treatment. She supported this submission by invoking the particular context in which the grievance had been initiated and also the nature of the pleaded allegations relied upon to establish the alleged victimisation discrimination.

As to context, she pointed out that the grievance procedure was only initiated because at the time it was necessary for this to be done before a claim could be lodged in the Employment Tribunal: see the Employment Act 2002 section 32.

Moreover, the relevant procedure in play was not the university’s own grievance procedure because that applied to employees and she was not one at the relevant time. It was the statutory grievance procedure set out in Part 2 of Schedule 2 to the Employment Act 2002. This only required the employer to hold a meeting at which the employee could discuss the grievance, and to adopt an appeal process which would entitle the claimant to attend a further meeting at which the grievance could be considered if that is what the claimant chose. There is nothing in the statutory procedure about the need to conduct detailed investigations into the grievance. Moreover, given that the true purpose of lodging the grievance was to protect her Employment Tribunal claim which would not otherwise have been validly made, it was wholly unrealistic for the claimant now to suggest that she had a real expectation that the grievance process would resolve her complaint.

Furthermore, Ms McCafferty submits that when one looks at the pleadings, which she went through in some detail, it is plain that the appellant is making nit picking and detailed complaints about the grievance process which are premised on the false notion that a much fuller procedure was required than the statute dictates. Ms McCafferty submitted - and I would accept - that in circumstances where there was no obvious comparator and no established procedure, the appellant would have to demonstrate that there was something unreasonable or unfair about the process before the claim could possibly succeed. This is because if the procedures were fair, there would be no basis to infer that a person who had not initiated a claim would have been treated any differently. She submitted that none of the complaints lodged by the appellant begin to identify any such failing. The appellant may genuinely have considered that further and more rigorous steps ought to have been taken by the university in order fairly to hear her grievance but that is not the same as saying that the procedure adopted, in the context in which it was raised, was in any sense unreasonable.

In summary, Ms McCafferty submits that in all the circumstances, having regard to the underlying merits of the substantive complaint, the context in which the grievance was raised and the matters pleaded, the Tribunal was fully entitled to conclude that there was no detriment and no less favourable treatment.

I recognise the force of this submission particularly in the light of the categorical rejection of Claim 1. But as I have already indicated, the fundamental difficulty with it is that this was not the way in which the case was advanced either before the Employment Tribunal or the EAT. In my view, whatever the force of the argument, the fact is that the appellant has had no opportunity to address this case. I do not think that it would be either fair or appropriate for this court to engage with this submission when it was not the case which Mr Segal, counsel for the appellant, had been expecting to have to meet and where the body charged with assessing the merits of such a claim, namely the Employment Tribunal, has not considered it.

Moreover, the jurisdiction of this court is limited to interfering where there is an error of law and it is not an error for the Tribunal to fail to find for a party for a reason never advanced before it.

There are exceptional cases where the Court of Appeal will allow a party to advance fresh grounds not advanced before the court below: Glatt v Sinclair [2013] EWCA Civ 241; [2013] 1 W.L.R. 3602. But in general that is only likely to be the case where the issue is one of law which can be determined on the facts found, and which admits of a clear and unambiguous answer: see Crane T/A Indigital Satellite Services v Sky In-Home Ltd. [2008] EWCA Civ 978. I do not think that the submission based on the unlikelihood of the claimant being able to establish the facts in the pleaded case falls into that category.

I should add that Mr Segal in any event identified one area where it seemed to me that the pleaded case does raise at least an issue as to whether there was an adequate investigation. One of the complaints is that the university failed properly to challenge Professor Walford about the extent of his knowledge of the settled claim. It is said that they merely took at face value a statement that he had made to that effect. Ms McCafferty submits that this argument goes nowhere because it is quite plain in the light of the Employment Tribunal’s conclusion what Professor Walford’s answer would have been. But that is not the issue. If there was a failure to carry out a proper investigation and the reason was the fact that the settled claim and/or Claim 1 had been lodged by the appellant, then the appellant would have established her case notwithstanding that a fuller investigation would in fact have produced nothing of value.

Ms McCafferty accepted that there will be cases where procedural failings may give rise to a detriment even although it is plain that they had no effect on the substantive outcome of the investigation, but she submits that this is not such a case.

In principle I do not see why not: if the appellant were able to establish that she had been treated less favourably in the way in which the procedures were applied, and the reason was that she was being victimised for having lodged a sex discrimination claim, she would have a legitimate sense of injustice which would in principle sound in damages. The fact that the outcome of the procedure would not have changed will be relevant to any assessment of any compensation, but it does not of itself defeat the substantive victimisation discrimination claim. It seems to me that Ms McCafferty’s case must depend on a consideration of the merits which, for reasons I have given, I do not think is justified in this appeal. I would uphold the appeal in relation to these two matters.

This is the complaint that the university failed to provide the claimant with or to undertake to preserve, certain relevant documents which she had sought both by a request and later pursuant to a more formal access request under the Data Protection Act. The appellant accepted that she wanted this action taken primarily in furtherance of the ongoing litigation, which at that point had been stayed. The university said that they would not do so because it was their understanding that they were not obliged to provide documents relevant to the outstanding litigation at that time, even if the Act would otherwise have required this. They relied, after taking independent legal advice, upon paragraph 31 of the judgment of Auld LJ in Durant v Financial Services Authority [2004] FSR 28.

The Employment Tribunal upheld the strike out application concluding, just as it had in respect of Claims 3 and 4, there had been no detriment. That was so whether the university had been right to believe that it could rely upon Durant as a justification for refusing to disclose or not. Employment Judge Barraclough said this (para 3.16):

“Whether the Respondent was right or wrong in its refusal of the Claimant’s request in reliance on Durant, I cannot see that she has suffered any detriment as a result of the alleged less favourable treatment. As Ms McCafferty points out, if the Claimant had ultimately been entitled to disclosure of the documentation requested in the tribunal litigation, then she would have seen it and been able to use it; but if she wasn’t so entitled, then she has lost nothing. Either way, there is no detriment. It is speculative, and there is no evidence to suggest that the Respondent’s refusal was influenced by the protected acts or any of them, particularly in the context of a somewhat abstruse dispute in the course of long running litigation between the parties, where both sides are and were represented by experienced lawyers, and where, it seems to me, a respectable argument at least can be advanced to justify the Respondent’s position. I bear in mind the helpful guidance in Pothecary Witham Weld v Bullimore [2010] IRLR 572 in relation to possible detriment arising in the conduct of the litigation, and particularly that a reasonable litigant could not properly regard as a detriment conduct by a former employer which was no more than reasonable conduct in defence of his position in the litigation. To my mind, the Respondent’s actions go no further than that. Accordingly, there is no reasonable prospect of the Claimant establishing that she has suffered any detriment in Claim 5, which must be struck out.”

The EAT concluded that the Employment Tribunal was entitled to reach this conclusion for the reasons it did.

Mr Segal submits that this analysis is misplaced. First, he says that there is a detriment where an employer unreasonably delays in providing data which the Act requires him to give, citing in support a decision of Baker J in AB v Ministry of Justice [2014] EWHC 1847 (QB). In that case the judge held that delay in providing information had resulted in distress sounding in damages and he awarded £2,250. I would accept that in principle a reasonable person could conceive the delay to be a detriment and to that extent would not rely upon this aspect of the Employment Tribunal’s decision.

However, the Tribunal has also found that the appellant would not be able to establish a detriment for a quite distinct reason, namely that the university was acting on legal advice and had acted reasonably in furtherance of its interests in the litigation. There is plenty of authority for the proposition that no reasonable employee could treat as a detriment ordinary and reasonable steps taken by the employer in the course of litigation: see the detailed discussion of the relevant authorities by Underhill P (as he then was) giving the judgment of the EAT in Pothecary Witham Weld v Bullimore [2010] ICR 1008. Mr Segal suggested that it was far from self-evident that it was reasonable to withhold personal data which would eventually have to be disclosed. But the finding below was that it was reasonable, and the appellant adduced no evidence to suggest that it was not an ordinary step in the course of litigation.

In my judgment, therefore, it is fanciful to believe that this particular claim could succeed. The university was acting on the advice of lawyers. As the employment judge recognised, whether the advice was right or wrong, there was no basis for believing that the university had done anything other than rely upon the advice. Short of a submission that the lawyers were in some kind of dishonest collusion with the university - and that argument has properly not been advanced - the only proper inference is that the university was acting in what it perceived to be its best interests in the litigation.

In my judgment, therefore, Claim 5 is not sustainable. It follows that I would allow Claims 3 and 4 to go for a full trial but would uphold the strike out of Claim 5.

However, whilst I accept that the Claims 3 and 4 cannot be struck out on the grounds advanced by the university, in my judgment, having regard to the largely speculative assertions made in the pleaded case and having regard also to the cavalier way in which in Claim 1 the appellant was willing to make unfounded allegations against the university, the case appears to be very weak with respect to each of these claims. In my opinion, there is little reasonable prospect of the appellant successfully establishing that she has suffered any detriment or less favourable treatment with respect to either the grievance hearing or the appeal by virtue of having taken a case under the Sex Discrimination Act against the university. In those circumstances we are entitled to make it a condition of pursuing these claims that she should pay a deposit, utilising the same powers that an employment tribunal could exercise pursuant to rule 39 of the Tribunal Rules. The maximum payable is £500 with respect to each separate allegation, which I consider is appropriate here. I would therefore make it a condition of her pursuing either of these claims that the appellant lodges with the Employment Tribunal within 4 weeks from the date of hand down of this judgment the sum of £500 referable to each of them. She will be at risk of losing the deposit with respect to a particular claim if that claim fails. Given the history of this litigation, I assume that the appellant is able to pay this sum. However, I would allow her to make submissions within seven days from the date of hand down of this judgment if she wishes to contend to the contrary.

I would uphold the appeals in relation to Claims 3 and 4. They will have to be heard in the Employment Tribunal but, subject to any further submissions relating to ability to pay, only if the claimant satisfies the condition relating to the payment of a deposit of £500 with respect to each claim. I would dismiss the appeal in relation to Claim 5.

I agree.

I also agree.