Claims for equal pay under the 1970 Equal Pay Act (EPA) have been much in the news lately with many women who have previously been paid less than their male counterparts seeking awards for back pay from local authorities.
Under Section 4 of the Sex Discrimination Act 1975 (SDA), it is unlawful victimisation for an employer to treat a person less favourably because they have brought proceedings against them under the SDA or the EPA.
The House of Lords has ruled (St Helens Metropolitan Borough Council v Derbyshire & Ors) that intimidating letters sent to employees to persuade them to drop proceedings and to settle an equal pay claim can amount to unlawful victimisation.
The equal pay claims were brought against St Helens Council by 39 women on the catering staff in its school meals service. Originally, 510 female employees had brought claims but the majority settled out of court. The remaining 39 took their claim to the Employment Tribunal (ET) and won.
Shortly before the hearing, the Council sent two letters – one to all the catering staff and another just to the individuals pursuing the claim. The letters pointed out the cost to the Council of meeting the claim should it lose the case and implied that unless the women agreed to the settlement offer already accepted by the other female employees there would have to be redundancies and it was likely that the school meals service would have to be withdrawn from all pupils other than those entitled by law to free meals.
The claimants felt that the letters were putting them under pressure to settle the claim and were intimidating and calculated to turn other members of staff against them. They therefore brought a claim for unlawful victimisation contrary to the SDA.
The women won their claim. The ET found as a fact that the letters caused distress to at least some of them and were responsible for bad feeling towards them. The Employment Appeal Tribunal rejected an appeal by the Council. However, the Court of Appeal held that the mere fact that an employer's objective is to compromise the proceedings is not sufficient to make conduct in pursuit of that objective discriminatory. In its view, it was not unlawful victimisation to write pointing out the consequences of a successful action, provided the employer’s action was an ‘honest and reasonable’ response in order to protect its interests and provided the letter wasn’t sent until after the claim had formally commenced.
The House of Lords judged that the Council had subjected the women to a detriment because it had gone further than was reasonable when attempting to protect its interests in the ongoing litigation and had done so because the applicants had brought equal pay claims against the Council. In circumstances such as this, an employer’s conduct should be viewed from the standpoint of the employees. Employers must avoid doing anything to put undue pressure on an employee to drop a claim. The sort of indirect pressure found in this case is just as likely to deter an employee from enforcing a claim as is a direct threat.