| All strands of the discrimination legislation contain a | | | | consequences is likely to frighten one not accustomed |
| prohibition on "victimisation", preventing an employer | | | | to legal controversy. It will provoke, not a dispassionate |
| from subjecting an employee to any detriment by | | | | balancing of strengths and weaknesses, but fear and |
| reason of the fact that the employee has made an | | | | perhaps panic." |
| allegation or claim of unlawful discrimination. Without | | | | Accordingly, the Council had gone further than |
| such protection from reprisals, the discrimination | | | | necessary to protect its interests in the litigation. |
| legislation would be significantly weakened. | | | | Comment |
| In the case of St Helens Borough Council v Derbyshire, | | | | The St Helens decision is a stark warning for |
| the House of Lords had to determine whether, by | | | | employers that they need to tread extremely carefully |
| exerting pressure on employees to settle an equal pay | | | | when defending discrimination claims, putting |
| claim, the Council had committed an act of victimisation. | | | | themselves in the shoes of the claimant and |
| The Facts | | | | considering whether their actions may be construed as |
| The case concerned 510 school dinner ladies, who | | | | causing unnecessary distress or intimidation. |
| argued that they were entitled to the same rate of | | | | However, employers also need to consider their legal |
| pay as road sweepers. The majority of the catering | | | | obligation to notify all affected staff if a genuine |
| staff reached a settlement with the Council but a | | | | redundancy situation does arise. In light of the St |
| group of 38 brought an equal pay claim in the | | | | Helens decision, it is suggested that letters to the |
| Employment Tribunal. Shortly before the hearing, the | | | | whole workforce should only be sent as a last resort, |
| Council wrote to all of the catering staff stating that, if | | | | where cut backs have become inevitable. |
| the claims were successful, the additional cost would | | | | AND IN OTHER NEWS... |
| result in the need to cut back on the provision of | | | | England goes smoke-free |
| school meals and this would lead to redundancies. The | | | | At 6am yesterday (1st July 2007), the ban on smoking |
| dinner ladies argued that this correspondence was | | | | in workplace (and enclosed public places) came into |
| intimidating and had caused them to suffer distress | | | | force. Under the legislation, employers face financial |
| and reproach from colleagues. They therefore pursued | | | | penalties if they fail to take reasonable steps to |
| an additional claim of victimisation. | | | | prevent smoking in the workplace, or fail to display |
| The Decision | | | | prominent "no-smoking" signs at the entrance to their |
| The central issue in the case was whether the Council | | | | premises. |
| had made an honest and reasonable attempt to settle | | | | The end of statutory dispute resolution procedures? |
| the proceedings, or whether it had exerted undue | | | | The statutory disciplinary and grievance procedures |
| pressure on the employees, so as to amount to a | | | | have proved unpopular with just about everyone who |
| detriment by reason of them continuing their equal pay | | | | has had to operate or interpret them, including |
| claims. | | | | employers, legal advisors and the Tribunals themselves. |
| In finding that the existence of a "detriment" must be | | | | Building upon the findings of the Gibbons Review, the |
| assessed from the point of view of the alleged victim, | | | | DTI has published a consultation document: "Success |
| the House of Lord concluded that the Council was | | | | at Work: Resolving disputes in the workplace", the |
| guilty of victimisation. Two issues tipped the balance in | | | | central proposal of which is the abolition of the |
| the employees' favour: | | | | statutory procedures. The consultation process has so |
| Firstly, the Council had written to all catering staff, | | | | far revealed wide support for this proposal and so it |
| including those who had already settled. The obvious | | | | looks like the statutory procedures have had their day. |
| intention and/or effect of this was to bring indirect | | | | What is less certain is when they will disappear and |
| pressure on the dinners ladies through the anger and | | | | what will replace them? |
| disapproval of their colleagues. | | | | DRC 'names and shames' |
| Secondly, the Council had written to the employees | | | | The amended DDA places a duty on public authorities |
| directly, rather than to their legal representatives. In the | | | | to publish a disability equality scheme (DES), showing |
| Tribunal's opinion: "A professional representative can | | | | how they intend to eliminate unlawful discrimination and |
| be expected to react calmly to such a letter. But...a | | | | promote equality of opportunity for disabled people. |
| letter pointing to the likelihood of dire, unpopular | | | | |