| DISCRIMINATION — Employment — Sex — Majority of female school catering staff settling equal pay claims — Employers’ letter to all staff claiming that success of claims by minority likely to result in substantial reduction of meals service — Complaints by minority of victimisation — Whether less favourable treatment by reason of pursuing equal pay claims — Sex Discrimination Act 1975, ss 4(1)(a), 6(2)(b)
Derbyshire and others v St Helens Metropolitan Borough Council (Equal Opportunities Commission and others intervening) [2007] UKHL 16
HL(E): Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Neuberger of Abbotsbury: 25 April 2007
A local authority that had sent letters to its employees warning of the consequences of persisting with equal pay claims had gone further in protecting its interests in the litigation than was reasonable and there had been victimisation within ss 4(1)(a) and 6(2)(b) of the Sex Discrimination Act 1975.
The House of Lords so held in allowing an appeal by the employees from a majority decision of the Court of Appeal (Jonathan Parker and Lloyd LJJ, Mummery LJ dissenting) [2006] ICR 90 allowing an appeal by St Helens Metropolitan Borough Council from a decision of the Employment Appeal Tribunal [2004] IRLR 851 dismissing its appeal from an employment tribunal.
LORD NEUBERGER said that some 470 women employed by the council as catering staff in its school meals service had settled claims under the Equal Pay Act 1970 but the applicants had proceeded with theirs. Some two months before they had been due to be heard the council had sent a letter to all staff saying that the continuance of the claims and a ruling against the council would have a severe impact on all staff and a letter to each applicant saying that it was greatly concerned about the outcome. The applicants had brought claims contending that they had been victimised as a result of the letters, contrary to s 4 of the 1975 Act. The Court of Appeal had approached the matter on the basis suggested in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947; [2001] ICR 1065 of the “honest and reasonable” employer. That defence was not in the legislation, and the reasoning in Khan seemed to place a somewhat uncomfortable and unclear meaning on the words “by reason that”. Moreover, whether any detriment had been suffered should be determined primarily from the perspective of the alleged victim. A more satisfactory conclusion, which in practice would almost always produce the same result, was to focus on detriment. In the present case, his Lordship was content to proceed on the basis that the council would defeat the applicants’ claims if it had acted as an honest and reasonable employer. The council could not, however, suggest that no reasonable tribunal could have concluded that the letters would not have been sent, in the circumstances, by an honest and reasonable employer (there was no suggestion of lack of honesty). His Lordship could not improve on the way in which Mummery LJ had expressed the matter in paras 38 and 39 of the Court of Appeal’s decision. The tribunal had concluded that the letters had had an intimidating effect on those who had not settled. They would not have had that effect on a claimant who had settled. They had also had a different effect on the individual applicants than they would have had on their legal representatives. The objection was not to the council seeking a settlement; it was to the particular means by which it had sought to achieve it. It had gone further than had been reasonable as a means of protecting its interests in the litigation. His Lordship would allow the appeal.
LORD BINGHAM delivered an opinion in favour of allowing the appeal.
LORD HOPE and BARONESS HALE delivered opinions agreeing with Lord Neuberger.
LORD CARSWELL agreed with Lord Neuberger.
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Appearances: John Hendy QC and Damian Brown (Thompsons, Liverpool) for the applicants; Christopher Jeans QC and Simon Gorton (Solicitor, St Helens Metropolitan Borough Council) for the council; Tess Gill and Nadia Motraghi (Solicitor, Equal Opportunities Commission, Manchester) for the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission, intervening.
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