Victimisation and what amounts to a protected act

Aston v The Martlet Group Ltd

Continuing with tribunal proceedings is as much a protected act as bringing proceedings in the first place.

Background

Mr Aston was an operations manager for a bicycle supply company. He suffered from depression and was on long-term sick leave. His employer considered alternative roles for him, but none were found that Mr Aston was willing to accept. Following a meeting where he declined to return to work, he was dismissed. His employer said it would give him an ex-gratia £4,000 payment. However, following a disagreement, this was never paid. Mr Aston claimed unfair dismissal, discrimination arising from a disability (dismissal because of his sickness absence) and a failure to make reasonable adjustments.

At a preliminary hearing, the unfair dismissal complaint was struck out for being out of time, but his discrimination claims were allowed to proceed. During evidence, a director of the company said that the ex-gratia offer was still on the table. Following correspondence between the parties after the hearing, the employer said that the payment was conditional on Mr Aston withdrawing his claims. No payment was made. Mr Aston then amended his claim to include victimisation – on the basis that he’d been refused the £4,000 because he had continued with the proceedings. A tribunal dismissed his victimisation and discrimination claims and he appealed.

EAT decision

The appeal as regards victimisation was dismissed.

The employer argued that because Mr Aston had already brought proceedings when the comments of the director regarding the payment were made, his claim related to his decision to continue with the claim as opposed to actually bringing it in the first place.

The EAT didn’t accept this, holding that there is no distinction between the protected act of ‘bringing proceedings’ and what Mr Aston was doing which was ‘continuing proceedings’. Therefore, by deciding to continue with the claim, Mr Aston had done a protected act for the purposes of a victimisation claim.

While Mr Aston ‘won’ this aspect of his claim, he ultimately failed in his appeal because:

  • Judicial proceedings immunity applied, and Mr Aston could not rely on the comments made by the director which were essential to his claim. This was not affected by EU law which in some instances can override such immunity where such immunity prevents someone from enforcing their rights under EU law – because statements made by an employer in witness evidence during a claim against it are not within the scope of the Equal Treatment Directive requiring protection against discrimination regarding ‘employment and working conditions, including dismissal’.
  • The Equality Act allows for victimisation claims from conduct that ‘arises out of and is closely connected to’ the past employment relationship. The £4,000 offer made was a ‘fresh and distinct context’, under oath during cross examination, so the connection to employment was not ‘close’.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0274_18_2105.html

Comment

An employee’s decision to continue proceedings will be considered a protected act as much as bringing proceedings in the first place – so take care when making informal settlement offers to resolve a dispute and take legal advice before doing so. Whilst most offers will be conditional on withdrawing a claim and made without prejudice, if an employer openly offers an employee a sum of money or a bonus or the ability to keep a car and then withdraws it because the employee is continuing the proceedings, this could be a further act of victimisation for which an injury to feelings award is made and where the ex-employee has a loss namely the bonus, car etc.