Can a victimisation claim under the Equality Act 2010 be brought following from evidence given in employment tribunal proceedings?
No, held the EAT in Aston v The Martlet Group.
The Claimant was dismissed following a period of long-term sickness absence; he claimed disability discrimination. The employer had previously offered £4,000 as a ‘goodwill gesture’ on termination, but didn’t pay up. At a preliminary hearing, a director of the Respondent re-stated the £4,000 offer whilst giving evidence.
Following correspondence between the parties after that hearing, the payment was not made. The Claimant amended his claim to include victimisation by not paying the sum offered.
The EAT dismissed the Claimant’s appeal against the tribunal’s dismissal of his victimisation claim. The EAT considered the law on judicial proceedings immunity (JPI) (the protection given against liability for witness evidence) – following the Supreme Court’s decision in P v Commissioner of Police of the Metropolis, and whether the EU Equal Treatment Directive required that the Claimant had an effective remedy against victimisation in these circumstances. The EAT held:
(i) 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”.
(ii) section 108 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’. Therefore, the ET had no jurisdiction to hear the complaint.
(iii) as there was no jurisdiction, the principles of JPI did not need to be overridden, but the EAT noted the powerful policy consideration behind JPI.