ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MS HONOUR JUDGE PETER CLARK
UKEAT/0532/12, [2013] UKEAT 0532_12_1007
Strand. London. WC2A 2LL |
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B e f o r e :
LORD JUSTICE ELIAS
and
LORD JUSTICE FLOYD
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DR CECILE DEER |
Appellant |
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- and - |
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UNIVERSITY OF OXFORD |
Respondent |
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Ms Jane McCafferty (instructed by Simmons & Simmons LLP) for the Respondent
Hearing date : 15 January 2015
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Crown Copyright ©
LORD JUSTICE ELIAS:
The relevant legislation
"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."
"A person (A) victimises another person (B) if A subjects B to a detriment because -
(a) B does a protected act..."
The Tribunal decision
Claims 3 and 4
"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. ..."
Claim 5
"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.
Deposit order
Disposal
LORD JUSTICE FLOYD:
LORD JUSTICE SULLIVAN: