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Remember the Sabbath Day(...Six days shalt thou labour, and do all thy work)

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The Court of Appeal has (by a majority) overturned the EAT's decision in St Helens MBC v Derbyshire.

Whether forceful and initmidating letters sent by an employer to a group of employees claiming Equal Pay can amount to victimisation.

510 female catering staff brought Equal Pay claims against the Council. The maority (470) settled them. A few (39) refused to settle.

About three months before the hearing of the 39 claims, the Council wrote to all employees, stating that if the 39 succeeded in their claim, the catering function might become impossible to run within budget and most of the catering staff might face redundancy. They wrote in similar terms to the 39 Claimants.

The 39 Claimants (who eventually won their equal pay claims) claimed victimisation. They stated that they had been subjected to a detriment (being made to feel responsible for the potential loss of colleagues' jobs) because because they had brought proceedings against the Council.

The ET and EAT
...both found in favour of the Claimants, and held that the Council had treated them less favourably by reason of their Equal Pay claim by sending those letters.

The Court of Appeal
By a majority (Jonathan Parker and Lloyd LJJ), the Court of Appeal overturned the earlier decisions.

They considered the issue was whether the employer's conduct had been part of an honest and reasonable attempt to compromise the proceedings, and that the employment tribunal had not specifically considered this point. The case was therefore remitted to the same tribunal.

In the minority, Mummery LJ pointed to the tribunal's findings that the Claimants had all been represented and that the Council had chosen to write directly to them instead of to their representatives. He also pointed out that it was unnecessary to write to all the other catering staff if the object was nothing more than an attempt to legitimately compromise the proceedings. He took the view the ET was entitled to have found vicrimisation occurred.

St Helens MBC v Derbyshire