United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0490/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 March 2011

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

(SITTING ALONE)

DR J S PARMAR APPELLANT

EAST LEICESTER MEDICAL PRACTICE RESPONDENTS

Transcript of Proceedings

JUDGMENT

AMENDED

APPEARANCES

SUMMARY

VICTIMISATION DISCRIMINATION

Claimant sought to bring victimisation proceedings based on statements in witness statements served in prior discrimination claim (subsequently dismissed on jurisdictional grounds) – Judge struck claim out on the basis that the statements attracted judicial proceedings immunity (Health v Commissioner of Metropolitan Police) – Appeal on basis that the immunity does not apply to victimisation claims

Appeal dismissed – Ratio in Heath applies to all kinds of discrimination by way of victimisation – In so far as EAT suggested otherwise in Zaiwalla, it was wrong – No inconsistency with the jurisdiction to award aggravated damages in respect of conduct in the course of proceedings.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1.            On 24 June 2008 the Claimant, who is a doctor, commenced proceedings against the Respondents, who are a GP partnership, in the Employment Tribunal for unfair dismissal and under the Race Relations Act 1976.  For the purpose of those proceedings the Respondents in July 2009 served on the Claimant a number of witness statements.  Not long afterwards, on 6 October 2009, the proceedings were dismissed because the provisions of section 32 of the Employment Act 2002 had not been satisfied.

2.            The Claimant says that the statements of six of the witnesses whose statements were served in the course of those proceedings contain untruths.  He says that each of those untruths was uttered by reason that he had brought the proceedings.  On 14 October 2009 he issued the present proceedings in the Employment Tribunal complaining of discrimination by way of victimisation within the meaning of section 2 of the 1976 Act and claiming compensation for the injury to his feelings which he says that those untruths have occasioned.  Not all the witnesses in question are partners in the Respondent firm, and there may be an issue as to the basis of any potential liability of the Respondents for the statements of those who are not; but that question is not in issue at this stage.

3.            By a Judgment and Reasons sent to the parties on 7 July 2010 Employment Judge Threlfell, sitting in the Leicester Employment Tribunal, dismissed the claim.  He did so formally on the basis that the proceedings had no reasonable prospect of success, but the substantial basis of his decision was that the contents of the witness statements relied on attracted so-called “judicial proceedings immunity”.  The Claimant has appealed against that decision.  He has been represented before me by Mr Oliver Hyams of counsel.  The Respondents have been represented by Mr David Monk of counsel.  Both counsel also appeared below.

4.            The leading case on judicial proceedings immunity is Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435.  From the speeches in that case the following points may be extracted:

(1) A witness enjoys absolute immunity from any action brought on the basis that his or her evidence is false or malicious or indeed careless (see per Lord Hope at page 445H to 446B).

(2) That immunity extends not only to the witness’s actual evidence in the witness box but to the preparation of witness statements, even if the trial never takes place (see per Lord Hope, loc. cit. and at p447 D-G).

(3) The immunity is absolute and does not, where it applies, involve any exercise of discretion by the Court.  It is extended as a matter of public policy in order to ensure that witnesses are able to give the evidence that they ought to give and thus to participate in the administration of justice without fear of being subjected to subsequent legal liability or harassment (see per Lord Hope at page 447 C-D, citing the speech of Lord Hoffmann in Taylor v Serious Fraud Office [1999] 2 AC 177).

(4) It is recognised that the immunity may sometimes benefit dishonest or malicious witnesses but that is a price that has to be paid (see per Lord Hope at page 447 B-C, endorsing the observations of Auld LJ in the Court of Appeal in the same case).

5.            In Heath v Commissioner of Police of the Metropolis [2005] ICR 329 the Court of Appeal made it clear that judicial proceedings immunity extended not only to common law claims such as defamation or negligence but also to claims under the discrimination legislation, since the public interest justifying the immunity was the same: see per Auld LJ at paragraphs 13-19, pages 336-340.  Auld LJ held explicitly and after full argument that the immunity was not contrary either to article 6 of the European Convention of Human Rights or the requirements of the underlying EU directives - in that particular case the Equal Treatment Directive: see paragraphs 58-71 (pages 350-5) and 86-97 (pages 357-361) respectively.

6.            On the face of it, therefore, the acts complained of by the Claimant in these proceedings clearly fall within the scope of the immunity.  They consist of statements made in witness statements prepared for the purpose of the Respondents’ defence of claims brought against it. 

7.            But Mr Hyams submits that the principles to which I have referred do not apply to claims of discrimination by way of victimisation.  He relies in particular on the decision of the European Court of Justice in Coote v Granada Hospitality Limited [1999] ICR 100, which established that it was a necessary concomitant of the substantive rights accorded by the Equal Treatment Directive to employees not to be discriminated against on the grounds of their sex, that there should be adequate measures in place to prevent them being victimised (though that precise term is not used) for asserting that right.  He relies in particular on paragraph 24 in the judgment of the Court, at page 113, which says this:

“The principle of effective judicial control laid down in article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment.  Fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive.” 

Mr Hyams points out that Heath itself was not concerned with claims of discrimination by way of victimisation.

8.            I cannot see why the reasoning of Auld LJ in Heath, and in particular his conclusion that the absolute immunity rule is not contrary to EU discrimination law, does not apply equally to claims of victimisation.  There are no special considerations which apply to victimisation more than to other kinds of discrimination.  If, as the Court of Appeal held, a witness cannot be made liable for giving evidence whose content is said to be motivated by an employee’s race or gender I can see no good reason why it should be possible to bring proceedings against him for giving evidence motivated by the fact that the employee has done a protected act.  It cannot be right that different rules apply to claims of primary discrimination and to claims of discrimination by way of victimisation, all the more so since victimisation is proscribed essentially in order to protect that primary right.  In both cases the right in question is of course an important one, but Heath confirms that it is trumped by the public interest lying behind the judicial proceedings immunity rule.  That rule is of course common to all causes of action, save only malicious prosecution, and there is therefore no question of an EU-derived right being treated differently from a domestic right.

9.            I would add that while I accept that the Court of Appeal in Heath was not concerned as such with the application of judicial proceedings immunity to cases of victimisation it will certainly have been aware that discrimination may take the form of victimisation.  Coote, for other reasons, was in fact at the forefront of the appellant’s argument in that case, and the fact that claims might be brought for victimisation was squarely before the Court.  Auld LJ indeed expressly refers to paragraph 24 of the ECJ judgment: see paragraph 82 of his judgment.  But whether claims of victimisation were specifically in the mind of the Court or not, the reasoning of Auld LJ must for the reasons already given apply in principle to claims of victimisation as much as to other forms of discrimination.

10.         The present case illustrates how unsatisfactory the position would be if the immunity did not apply.  It would in many cases be all too easy for claimants who have failed in their primary claims, for whatever reason, to resurrect the allegations made in them by way of collateral proceedings complaining that the evidence given for the respondents constituted discrimination or victimisation.  In cases where the evidence in question has been expressly found to be true, perhaps such a claim could be struck out on the basis of issue estoppel or abuse, or indeed because a true statement cannot constitute a detriment for the purpose of the Act.  But in many cases there may have been no such finding - either because, as here, the case was dismissed on a jurisdictional ground or because it had been decided on some other basis (legal or factual) that did not require a finding on the points in question.  The bringing of the proceedings in the course of which such evidence was given will, by definition, be a protected act; and, even if the claimant eschews the vulgar error of saying that the evidence was given by reason of that act simply because the proceedings were the occasion for it, it will be entirely plausible for him to allege that the manner or content of the evidence was to some significant extent (even if only subconsciously) influenced by the fact that the protected act had been done.  That is essentially what is happening here.  I have not in fact seen the full witness statements in question.  All that I have is isolated sentences extracted from them in Mr Hyams’ Particulars of Claim.  However, on their face the statements extracted are in no way discriminatory or, to be more precise, victimisatory.  They simply take issue with aspects of the Claimant’s case or assert versions of the facts apparently contrary to it.  If the case were permitted to proceed the Claimant would be enabled to dispute those contentions and thus go over in these proceedings issues which he could and should have had decided first time around if the claim had not failed on other grounds.  Formally, no doubt, the issue would be alleged victimisation under section 2 rather than primary discrimination under section 1, but the underlying question, namely whether his case was well-founded, would be the same.

11.         Mr Hyams also sought to rely on the decision of this Tribunal, Maurice Kay J presiding, in Zaiwalla & Co v Walia [2002] IRLR 697.  In that case a trainee solicitor had brought proceedings for sex discrimination against the firm which employed her and was given an award of compensation for injury to feelings which included an element of “aggravated damages” in respect of the way in which the respondents had defended the claim.  The precise details of the conduct in question are not clear, but they are broadly stated in a passage from the employment tribunal’s reasons quoted at paragraph 22 in the judgment of Maurice Kay J.  This reads as follows:

“This Applicant not only suffered the treatment complained of but also was treated in this way in a legal practice where we would have expected standards to apply which had some regard to equal opportunities.  The Applicant was treated badly and her complaint resulted in a minimal letter in response from Mr Zaiwalla.  The Applicant was told on termination of employment that she would be supplied with no reasons for the failure to gain a training contract.  She was then given a letter belittling her abilities.  When she took Tribunal proceedings a monumental amount of effort was put into defending those proceedings.  That exercise was of the most inappropriate kind, attacking the Applicant in relation to her personal standards of professional conduct and holding a series of threats over her head which would be daunting to any individual let alone to someone about to embark on a legal career having difficulty obtaining a training contract.  The defence of these proceedings was deliberately designed by the Respondents to be intimidatory and cause the maximum unease and distress to the Applicant.”

In giving this Tribunal’s reasons for upholding the award of aggravated damages Maurice Kay J said this, at paragraph 24:

“In our judgment, there is no reason in law why aggravated damages should not be awarded by reference to conduct in the defence of proceedings in a discrimination case such as the present case, which is very different from the context of non-intentional torts as exemplified in AB v South West Water Services Ltd [1993] QB 507.  Indeed, there is a very good policy reason for allowing such a claim in an appropriate discrimination case.  If a respondent misconducts himself in the defence of a discrimination case, it may amount to victimisation of the applicant in respect of the protected act of bringing the claim.  It is easy to imagine cases in which the misconduct amounting to victimisation might only arise at a late stage of the proceedings, perhaps only during the hearing.  It seems to us that it would be regrettable if such victimisation could only be compensated by the commencement of further proceedings.  In the field of discrimination law there are already too many cases that give rise to multiple proceedings and satellite litigation.  In the sort of case which we are considering here, it is preferable that, where there is misconduct of sufficient gravity, it is compensated by the Tribunal which is seised of the matter and which has the feel for the aggravating material and its effect on the victim.”

Mr Hyams points out that Maurice Kay J in that passage clearly assumed that in principle a claim could be brought for victimisation arising out of the way in which the respondents had conducted themselves during the proceedings, and indeed during the hearing.  If my view, as expressed above, were right, such conduct would be covered by judicial proceedings immunity; but Maurice Kay J must, he submits, have understood that immunity not to apply to such a claim, and he further submits that that understanding was correct.

12.         I should start by observing that Maurice Kay J does not specify the kind of misconduct which he had in mind.  It is not difficult to imagine misconduct, even in the conduct of proceedings, which would fall outside the scope of the judicial proceedings immunity.  However, it is fair to assume that he had in mind conduct of the kind alleged against the respondents in the case before him; and it is right to acknowledge that that included elements, most obviously “attacking the applicant in relation to her personal standards of professional conduct”, which must have been incorporated in evidence given to the tribunal.  So it may not be fair to distinguish Zaiwalla on that basis.  The more fundamental point, however, is that the question of judicial proceedings immunity was simply not before the Tribunal in that case.  Heath had not at that point been decided and no argument on the question of immunity was raised.  It cannot therefore be used as authority for an exception or limitation to the principles otherwise clearly established in Heath.  The fact is that I am bound, as the Employment Tribunal was bound, by the ratio in Heath, and nothing in Zaiwalla can affect that fact.  I would not, however, want it to be thought that by emphasising that I am bound in that way I am hinting that I regard the result as unsatisfactory.  On the contrary, for the reasons I have already given, it seems to me clear that the principle of judicial proceedings immunity ought to apply in this case and that there is no conflict with the underlying EU principles.

13.         Mr Hyams also sought to rely on the decision of Zaiwalla in another way.  He argued that if a respondent’s misconduct in the course of the hearing of a discrimination claim can be used as the basis of a claim for aggravated damages (as held in Zaiwalla and subsequently confirmed, albeit only by way of concession, in Massey v UNIFI [2008] ICR 62 - see per Maurice Kay LJ at paragraph 26), that is itself an exception to the rule of judicial proceedings immunity because the threat of being liable for aggravated damages must be capable of inhibiting the freedom of a witness, or at least a witness who was a party, to give his or her evidence without fear of the consequences.  That being so, he submits, there is no logical basis for preventing a claimant relying on what may well in practice be very similar conduct on the part of the respondent as the basis of a free-standing victimisation claim.

14.         Even if I were not bound by Heath I would not accept that argument.  The policy behind the judicial proceedings immunity rule could not realistically, and does not, shield a witness, and more particularly a party, from all adverse consequences of his conduct.  He can, of course, as acknowledged in Darker, be prosecuted for perjury or sued for malicious prosecution.  More pertinently, if he is a party his conduct may also (in the common law courts) attract an order for costs on the indemnity basis, or (in the Employment Tribunal) an order for costs on the basis that he has acted “vexatiously, abusively, disruptively or otherwise unreasonably”.  But it has never been suggested that the existence of that kind of risk for a party undermines the policy rationale for the general judicial proceedings immunity rule.  Those kinds of consequences are different from the risk that he may be rendered liable in separate proceedings (whether for negligence, defamation, discrimination or any other cause of action) for what he has said in his evidence.  Once that distinction is recognised I see no difficulty about treating the risk of aggravated damages as falling outside the scope of the judicial immunity rule.  It is of course incurred in the selfsame proceedings as those in which the evidence is given.  That by itself is an important point: the claimant has no liberty to initiate separate proceedings, and the court can control any possible abusive threats by the claimant.  But it may also be relevant that aggravated damages are not punitive.  In this regard I note what I said in my judgment in HM Prison Service v Salmon [2001] IRLR 425, at paragraph 23.  Having referred to the statement of general principle about aggravated damages in Alexander v Home Office [1988] IRLR 190, I said this:

“However, it is also clear that aggravated damages are awarded only on the basis, and to the extent, that the aggravating features have increased the impact of the discriminatory act or conduct on the applicant and thus the injury to his or her feelings: in other words, they form part of the compensatory award and do not constitute a separate, punitive, award.  If this were not already sufficiently clear from Alexander, it was explicitly decided by the Northern Ireland Court of Appeal in McConnell v Police Authority for Northern Ireland [1997] IRLR 625 (see at paragraph 19); and McConnell was followed by this Tribunal in Tchoula v ICTS (UK) Ltd [2000] ICR 1191 (see p649).”

15.         I should mention for completeness that I was referred to two well-known House of Lords authorities on discrimination - Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 and Derbyshire v St Helens Metropolitan Borough Council [2007] ICR 841 - and to the decision of this Tribunal (HHJ McMullen QC presiding) in South London and Maudsley NHS Trust v Dathi [2008] IRLR 350, which considered the scope of judicial proceedings immunity in somewhat different circumstances.  None of those cases, however, was concerned with the issue which I have to decide on this appeal.

16.         For the reasons given I dismiss this appeal.