The Employment Appeal Tribunal (EAT) has held in Aston v The Martlet Group Ltd that ex-employees bringing a discrimination claim must be able to show not just that the discrimination arose out of the employment relationship but also that it was “closely” connected to it. As such, there must not be “too many links in the chain”.
Basic facts
Following a period of long-term sick leave, Mr Aston’s employer wrote to him offering him £4,000 as a “gesture of goodwill” which Mr Aston accepted. As the payment did not materialise, however, Mr Aston brought claims for unfair dismissal and disability discrimination.
At a preliminary hearing, the tribunal ruled that his claim for unfair dismissal was out of time but extended time in relation to the discrimination claim. During the course of giving evidence at the hearing, a company director repeated the offer of a payment of £4,000, but made clear subsequently that this was conditional on the claims being withdrawn.
Mr Aston then amended his claim to include victimisation on the basis that his employer had refused to pay him because he had brought proceedings contrary to section 27(2)(a) of the Equality Act.
Tribunal decision
At a full hearing the tribunal dismissed all his claims. Mr Aston appealed against the dismissal of the victimisation complaint, among other things.
For its part, the company argued that there was no jurisdiction to hear the victimisation complaint because (a) an essential component of it was covered by judicial proceedings immunity (immunity given against liability when giving witness evidence); (b) it was not within the scope of section 108 of the Equality Act; and that (c) as a matter of law, “continuing” to pursue proceedings, as opposed to “bringing” or instigating proceedings, was not a protected act under section 27(2)(a).
EAT decision
With regard to the last point, the EAT held that the concept of bringing proceedings found in section 27(2)(a) should be construed as embracing a decision to continue with proceedings. Apart from anything else, it would not make sense if an employer could treat an employee badly because they continued proceedings but not if they brought proceedings.
With regard to the issue of judicial proceedings immunity, it held that this did not apply in this case because statements made by an employer when giving evidence at a hearing of a claim against them did not fall within the scope of Article 3(1)(c) of the Equal Treatment Directive relating to: “employment and working conditions, including dismissal and pay”.
Nor did the claim fall within section 108 which outlaws discrimination arising “out of and [which] is closely connected to a relationship” that has ended. In order to meet the test, the conduct must not just arise out of the relationship, but it must also be closely connected to it.
As the offer of £4000 in this case was not to settle any actual or potential claims arising out of the termination, had been withdrawn many months before the hearing and was not made available in the period immediately before the hearing, it could not be said to be closely connected to the employment relationship.
Acknowledging that it may have arisen from the former employment and have been connected with it, the EAT emphasised that it was not conduct which could be said to be “closely” connected with it as there were simply “too many links in the chain”.