Facts
The Council wrote two letters: one to the claimants, who had rejected a settlement offer accepted by 470 other employees and were intent on pursuing their claim for equal pay to the tribunal; the other to all catering employees, including the claimants. These were ‘carefully written’, their tone was ‘rational’ and they contained ‘much that was sensible’. They pointed out that success at tribunal for the claimants would cost the Council a great deal of money which would imperil the future of the school meals service in which they worked.
Decision
The employment tribunal held, and the House of Lords has now confirmed, that sending the letters amounted to unlawful victimisation of the claimants. This was because the claimants were treated less favourably than their colleagues, in that the letters would cause them to be ‘subject to pressures which the comparator employees would not undergo’. As a result, they suffered detriment in that they suffered distress and (at least the fear of) public odium and reproach. Finally, there could only be one answer to the question ‘why did these employers send the letters?’, namely because the claimants were pursuing their claim to tribunal.
Comment
So, where does this leave employers who want to ensure employees understand the implications for the business if they press home their pay claim and/or who want to inform their workforce of the potential threat the business is under? If the wages claim in question is being pursued via an unlawful deduction or breach of contract claim, they remain free to do what St Helens did in this case. Where it is an equal pay claim, the following guidance can be gleaned. First, seeking to persuade the employees to drop their claim is not necessarily victimisation. Explaining to the employees’ solicitor, in measured and accurate terms, the financial or employment consequences of the claim succeeding, is acceptable even if it causes distress to the claimant. This is because the employer is then acting honestly and reasonably, so either the employee’s distress does not amount to a detriment or the employer’s conduct is not because the claimant is pursuing their claim. As to where the borderline may be crossed, the employer ‘must avoid doing anything that might make a reasonable employee feel that she is being unduly pressurised to concede her claim’. The employer should show ‘sensitivity to the wider effects of what he plans’. So, whilst keeping the workforce informed of potential threats to the business is normally a good thing, if it might lead to equal pay claimants suffering the reproaches of colleagues, it is a bad thing.