Litigation and Victimisation: When do Legal Communications Cross the Line?

Can the actions or communications of lawyers during litigation or pre-litigation amount to victimisation, contrary to s.27 Equality Act 2010? This is a question which arises in a sexual harassment claim Farore Law is currently handling, where we are acting for the claimant. In the pleaded case we are arguing that a letter from the Respondent’s solicitors amounted to victimisation, since the content of the letter was extremely inappropriate, aggressive and contained threats. This blog considers the extent to which a party can plead victimisation based on the conduct of lawyers or other representatives occurring during pre-litigation or litigation. 

A notable example is Derbyshire and ors v St Helens Metropolitan Borough Council and ors 2007 ICR 841. In that case, the Council, defending an equal pay claim, sent letters to all the claimants and their colleagues warning of dire consequences, including redundancies and the withdrawal of school meal provision, if the equal pay claims succeeded. The claimants argued that these letters amounted to victimisation. 

The House of Lords agreed, finding that while a Respondent is entitled to protect its interest in litigation, the Council’s actions went beyond what was reasonable. As a result, the employment tribunal was entitled to find that the Claimants had suffered detriment for the purposes of their victimisation claim. In particular, it was concluded that the purpose of the Council’s letters was to place undue pressure on the Claimants to settle their claims.

What Constitutes Detriment?

To establish detriment, the test is whether a reasonable worker would or might take the view that the treatment was in all the circumstances to their disadvantage. This excludes any unjustified sense of grievance from succeeding as a claim of detriment. This test was confirmed in St Helens, which held that the test is not merely satisfied by the claimant showing that they have suffered mental distress: it would have to be objectively reasonable in all the circumstances. 

Thus, where an employer’s distress arises from an employer’s honest and reasonable conduct during its defence or in the conduct of settlement negotiations, this will not constitute a ‘detriment’ for the purposes of the Equality Act 2010 if the tribunal concludes that the employer’s conduct was objectively reasonable in all the circumstances. The case of British Medical Association v Chaudhary 2007 IRLR 800 reinforces this point. The Court of Appeal held that the British Medical Association’s (“BMA”) refusal to support a litigant in a race discrimination claim against the Royal College of Surgeons did not amount to victimisation. The BMA had previously been the subject of allegations by the Claimant, and the court held that the BMA was entitled to protect itself against future litigation. 

However, employers must consider how their actions affect the employees concerned. For example, actions which could be regarded as undue pressure to induce an employee to give up their claim may amount to detrimental treatment of the employee ‘because’ of a claim brought, and therefore could amount to victimisation. 

When Can Solicitors’ Communications Amount to Victimisation?

Open correspondence by solicitors is assumed to reflect the client’s instructions. Excessively aggressive or inappropriate language by solicitors may be considered detrimental behaviour. This could restart limitation periods for ongoing discrimination claims. By way of example, accusing an alleged victim of harassment of being “an out and out liar” (using such inflammatory language) or threatening the victim with police action, may well step over the line and constitute victimisation. 

The position is different in without prejudice communications. Ordinarily, the ‘without prejudice’ rule protects settlement discussions from being used as evidence. However, this protection is removed if the communication involves, for example, undue influence, blackmail, or ‘unambiguous impropriety’. 

The Employment Appeal Tribunal in Woodward v Santander UK plc 2010 IRLR 834 clarified that while explicitly discriminatory statements – such as refusing to employ someone because of their race – would fall outside the protection of ‘without prejudice’ rules, statements that could be discriminatory but are not unambiguous remains protected and fall outside the ‘unambiguous impropriety’ rule. 

Key takeaways for employers:

• You are entitled to defend yourself: Employers can take reasonable steps to protect their position in litigation but must consider the impact of their actions on the employees concerned. 
• Maintain honest and reasonable conduct: Distress and worry induced by the employer’s honest and reasonable conduct during its defence or in the conduct of any settlement negotiations will likely not constitute ‘detriment’. 
• Avoid undue pressure: If an employer’s actions could amount to undue pressure on the employees to give up a claim, then it may be viewed as detrimental treatment ‘because’ of a protected act and therefore amount to victimisation. 
• Factual and accurate legal communications are unlikely to be detrimental: A solicitor outlining the their assessment of  the merits of a claim, their view on what a Tribunal is likely to award the Claimant (if successful), or presenting terms of a settlement which are unattractive to the employee, is unlikely to amount to victimisation.
• Legal correspondence is not immune from victimisation claims: Aggressive or inappropriate language from solicitors may constitute a detriment and therefore give rise to a victimisation claim. 

While employers and their legal representatives have the right to protect their interests, they must tread carefully to ensure that litigation conduct does not inadvertently give rise to further claims of victimisation.

Farore Law is a specialist firm of employment lawyers, with a wealth of experience in Employment Tribunal litigation. Please contact us if you require legal advice.