Employment Law Speed Read – 10/06/19

Background

The Claimant, Mr Aston was dismissed following a period of long-term sickness absence after suffering from depression. The Respondent, The Martlet Group (Martlet) explored the possibility of a return to work, but this was unsuccessful. Martlet offered to pay Mr Ashton £4,000 as a gesture of goodwill the time of his dismissal. The payment was never made and was later withdrawn.

Employment Tribunal (ET)

Mr Aston brought claims of unfair dismissal and disability discrimination. His unfair dismissal claim was held to be out of time but his disability discrimination claims were allowed to proceed.

At a Preliminary Hearing, whilst giving evidence, a Director of Martlet, said that he would still be happy to pay Mr Aston £4,000. Following correspondence between the parties after the Preliminary Hearing, Martlet stated that the offer was conditional upon Mr Aston withdrawing his claims. No payment was made and Mr Aston was granted permission to amend his claim form to include victimisation. Mr Aston stated that Martlet had subjected him to a detriment, by not paying him £4,000, because he brought proceedings and gave evidence in connection with those proceedings.

The ET dismissed Mr Aston’s claims for disability discrimination and his victimisation complaint. Mr Aston appealed.

Employment Appeal Tribunal

In respect of the victimisation claim, Martlet sought to rely on the law on Judicial Proceedings Immunity (JPI), which allows witnesses to give evidence in proceedings without the fear of liability. Mr Aston argued the provisions of JPI should be disapplied where the provisions conflict with an individual’s effective enjoyment of their rights under the EU Equal Treatment Directive (Directive). Mr Aston sought to rely on the Supreme Court decision of P v Commissioner of Police of the Metropolis [2017] UKSC 65 where it was held that a police officer should have the right to appeal a police misconduct panel’s decision, even where those proceedings might attract JPI.

The EAT remitted Mr Aston’s disability discrimination claims to a differently constituted ET, but dismissed his appeal in relation to his victimisation complaint.

The EAT held that a claim for victimisation concerning relationships that have ended, must meet the test in section 108 of the Equality Act 2010 (EqA) which provides that the conduct must be something that “arises out of” the past relationship, but is also “closely connected” to it. The EAT held that the offer made to Mr Aston arose from his former employment and was connected with it, but the “clear water” between the original, later withdrawn offer, and the fresh and distinct context in which the offer relied upon was elicited, meant that the close connection test was not satisfied.

In addition, the EAT held that it did not necessarily follow from P v Commissioner of Police of the Metropolis that JPI could not be relied upon to undermine Mr Aston’s victimisation claim. That would depend on whether his claim fell within the scope of the Directive. The Directive does not cover statements made by an employer during witness evidence, but is concerned with “employment and working conditions, including dismissal” and as such Mr Aston’s case was not covered by the Directive. Therefore the ET had no jurisdiction to hear his complaint and as such, the principles of JPI did not need to be overridden. However the EAT noted the powerful policy considerations which lie behind the application of JPI and held that the giving of evidence by a witness in the course of a judicial hearing is incontrovertibly a context to which JPI applies.

Comment

This decision provides useful guidance on the test under section 108 of the EqA, concerning employment relationships that have ended. The guidance on the circumstances in which the protection of JPI will apply will also be reassuring to witnesses giving evidence in Tribunal.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.