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No Victimisation Claim for Statements Made by Director During Cross-Examination

on Friday, 07 June 2019.

Comments made by an employer's witness during cross examination at an Employment Tribunal hearing did not give rise to a victimisation claim by a former employee.

The facts

The Martlet Group trading as i-Ride (i-Ride) dismissed their employee Mr Aston, who then brought claims of unfair dismissal and disability discrimination. At a preliminary hearing at the Employment Tribunal (ET), when giving evidence as a witness for i-Ride, a director said that i-Ride would pay Mr Aston £4,000 as a 'goodwill payment'. i-Ride later told Mr Aston that he would only receive this sum if he signed a document to say that he would withdraw his claims. Mr Aston did not sign the document and the £4,000 was not paid.

Mr Aston then made an additional claim of victimisation, on the basis that he had suffered the detriment of not receiving the £4,000 because he had brought proceedings under the Equality Act.

Continuing a claim is a protected act

i-Ride submitted that Mr Aston had already brought proceedings when the comments were made, and therefore his claim related to his decision to continue with the claim as opposed to actually bringing it in the first place. The EAT did not accept this argument, holding that that there is no distinction between the protected act of 'bringing proceedings' and what Mr Aston was doing which was 'continuing proceedings'. Therefore, by deciding to continue with the claim, Mr Aston had done a protected act for the purposes of a victimisation claim.

Claimant could not rely on the comments as evidence of victimisation

Judicial proceedings immunity prevents things said by a witness when giving evidence being used as evidence for later claims. Judicial proceedings immunity has previously been overridden if the immunity prevents an individual from enforcing their rights under EU law. However this exception did not apply to Mr Aston's claim because statements made by an employer, via a witness giving evidence, were not within the scope of the relevant provisions of EU law. Therefore Mr Aston could not rely on the comments made by i-Ride's witness, which were essential to his victimisation claim.

Offer to pay £4,000 was not closely connected to the employment

To succeed in a victimisation claim relating to an event that took place after an employment relationship has ended, Mr Aston had to show that the events complained of 'arose out of' and were 'closely connected to' the former employment relationship. The £4,000 offer arose from and was connected with the former employment, but was not connected closely enough to satisfy the test.

The appeal was dismissed and the victimisation claim failed.

What can employers learn from this decision?

A claimant's decision to continue proceedings will be considered a protected act as much as bringing proceedings in the first place, and employers should take note to be careful of the impact of making informal settlement offers to resolve a dispute. Legal advice should be obtained to ensure that an offer of settlement is made in such a way as to not prejudice an employer's prospects of success before the Employment Tribunals.

For more information, please contact Nadjia Zychowicz in our Employment Law team on 01923 919 375.

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