Causation in Discrimination and Victimisation Claims

In this case, Mr Bailey was employed as a police officer and had previously brought a case of race discrimination against Greater Manchester Police (GMP) in 2008. This was settled prior to the tribunal hearing and a clause in the settlement stated that Mr Bailey would be offered a secondment at a different unit. His initial claim of race discrimination was his relied on protected act in this claim.

Mr Bailey began work on his secondment which lasted more than the two years as prescribed in the settlement terms. Eventually, GMP ended the secondment. Mr Bailey continued to work in the same unit but as a GMP officer. This change caused him to lose his entitlement to a company car and travel expenses. This, along with the loss of other benefits, was the detriment he alleged he suffered.

Mr Bailey then brought a new claim of race discrimination and victimisation in 2013. He claimed, but for the protected act of him bringing a race discrimination claim in 2008, he would not have suffered the detriment of losing his benefits. This was therefore victimisation on the grounds of his race.

Both the Employment Tribunal and Employment Appeal Tribunal agreed with him and upheld the claims. However, the Court of Appeal correctly pointed out that the “but for” question is not appropriate in this situation. Obviously, the secondment would not have ended if Mr Bailey had not made a claim and settled it in 2008, but that is only because there would not have been a secondment if it were not for the claim. The correct question was whether the termination of the secondment and subsequent loss of benefits was because of Mr Bailey’s race. Clearly it was not. The secondment ended because he was only entitled to it for two years and the loss of benefits was a natural consequence of that.

What does this mean for you or your business?

This decision confirmed that evidence of discriminatory attitudes or conduct in a business can be referred to in proceedings. If unlawful discrimination is found then a tribunal can make recommendations.

The Court of Appeal found, importantly, that in victimisation claims the Tribunal must investigate the ‘mental processes of the putative discriminator’ and they should not simply apply the ‘but for’ test.  The Court of Appeal found that there was no mental consideration of the original race claim when the secondment came to an end.  This is the basis on which Mr Bailey’s appeal failed. 

Finally, the Court of Appeal criticised GMP for not requesting further and better particulars of the claim earlier on which would have allowed both parties to focus on the issues at hand. Employers would be wise to sift out the relevant points of a Claimant’s claim if a discrimination claim is made against them.

What do you need to be doing now?

Line managers and HR professionals should be  trained on the Equality Act and have clear policies so they know how to avoid discrimination claims and how best to manage their employees if such issues are raised.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.