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Section 4 of the 1975 Sex Discrimination Act says that victimising someone for bringing a claim under the Equal Pay Act is, in itself, a discriminatory act.
In St Helens MBC v Derbyshire and ors (see LELR 94 for the EAT decision), the Court of Appeal has said that the women were not victimised by their employer when they were sent letters warning them of the implications of continuing with their equal pay claims for the future of the school meals service.
The women's union - the GMB - instructed Thompsons to act on their behalf.
Over 500 female catering staff brought equal pay claims against the council in 1998. The vast majority of the women agreed a settlement, but 39 pursued their claim and were ultimately successful.
However, two months before the hearing in 2001, they received a letter from the council, warning them that it could not absorb the cost of their claims, and asking them to withdraw. The second (sent to all catering staff) warned that everyone's job would be at risk, if the 39 who had not settled were successful.
The women said that the letters made them feel that they would be blamed for the consequences, if they were successful. The council justified the letters, saying that the purpose was simply to get the women "to face facts and to take a responsible view of reality".
The original tribunal dismissed the women's claim, but the employment appeal tribunal (EAT) allowed their appeal and remitted the case to a second tribunal, which then found in their favour. It said the letters contained "what was effectively a threat".
The council appealed against that decision and the second EAT dismissed their appeal, saying that the women had been penalised for exercising their statutory rights. The council appealed again to the Court of Appeal.
To ascertain whether the council could rely on the "honest and reasonable employer" defence, the Court had to ask a number of questions: who was the right comparator; whether the employees received less favourable treatment than the comparators would have done; whether the employees suffered "detriment" (or disadvantage) as a result; and whether that treatment was "by reason that" the employees had brought protected proceedings.
The Court of Appeal agreed with the findings of the employment tribunal to the extent that the appropriate comparators were non-litigants as well as ex-litigants; that there had been less favourable treatment; and that the women had been subject to a detriment.
Relying on Chief Constable of West Yorkshire Police v Khan (2001, ICR 1065), a majority of the Court of Appeal said that the main sticking point was "whether the conduct complained of falls within the description of an honest and reasonable attempt by the Council to compromise the proceedings." This, according to Khan, was not the same as victimisation.
The majority of the judges could see no reason why an employer facing equal pay proceedings could not take steps to try to persuade the women to settle the claim without infringing the victimisation provisions. Otherwise, they said: "the ability of employers to take reasonable steps to protect themselves in litigation is much attenuated as compared to what it would be in other, nonprotected litigation."
They therefore remitted the issue - again - to another tribunal to determine whether the council's actions fell within the scope of the "honest and reasonable employer" defence.
A lone judge disagreed, however. He said the tribunal was right in its finding of victimisation, because the council could have written to the women's union or their legal representatives if its aim was simply to resolve the outstanding claims. It was also unnecessary to involve the other catering staff.