Sex Discrimination — Burden of Proof
The liability judgment
The ET did not err in law in dismissing the Claimant’s complaints of unlawful discrimination, victimisation and harassment. In one respect – relating to the ET’s reasoning concerning the burden of proof – the EAT’s decision is by a majority, Mr Hunter dissenting – see paragraphs 61-76.
The costs judgment
The ET erred in law in its approach to the question of costs. In determining whether the Claimant’s conduct (for example in proceeding with the litigation rather than accepting offers) was unreasonable it should not have substituted its own view but should rather have asked whether her conduct was within or outside the range of reasonable responses in the circumstances.
‘We wish to say a word about the offer of pounds 500 to the Claimant to obtain legal advice. We think it clear that the advice which the Claimant could expect to receive for this sum (or any sum remotely like it) would only relate to the terms and effect of the proposed settlement and its effect on her ability to pursue her rights thereafter (see section 203(3) of the Employment Rights Act 1996). Any advice as to the merits of the Claimant’s claim and the likely award of compensation would require reading and consideration on a quite different scale. So even if the Claimant had sought advice, she would still have had to make her own lay assessment as to the merits of her claim and the likely award of compensation. The ET said, in paragraph 10 of its reasons, that the offer of pounds 500 plus VAT was for a solicitor ‘to advise on the merits of a settlement’. If so, the offer was wholly unrealistic.’
Judges:
David Richardson HHJ
Citations:
[2019] UKEAT 0258 – 18 – 2910
Links:
Statutes:
Employment Tribunal Rules of Procedure 2013 76
Jurisdiction:
England and Wales
Employment, Discrimination, Costs
Updated: 01 September 2022; Ref: scu.643082