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Victimisation in Litigation

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The EAT has handed down a judgment considering the conflicting policies of allowing litigators to fight cases sensibly, and the importance of not victimising someone who brings a discrimination claim.

Mrs Dathi claimed discrimination. Her employer refused to disclose certain documents during the litigation. Mrs Dathi claimed that the letter in which the Respondent refused to disclose those documents amounted to an act of victimisation. She also contended that a robust letter resisting her application for costs was a further act of victimisation. The Respondent claimed both letters enjoyed absolute immunity, being produced for the purpose of litigation.

The EAT (HHJ McMullen QC) held that both letters came into existence for the purpose of litigation and attracted absolute immunity. Even if they did not, they would have amounted to honest and reasonable communications between representatives for the purpose of preparing for a trial, which would be a defence to a victimisation claim (see paras. 27-28).

South London & Maudsley NHS Trust v Dathi