This is according to the recent EAT decision in Aston v The Marlet Group. The EAT dismissed the claimant’s victimisation claim, considering the law on the judicial proceedings immunity and paying particular attention to the Supreme Court decision in P v Commissioner of Police in the Metropolis.
The Claimant went off sick in June 2015 and after a sustained period of absence he was dismissed. The Respondent offered a ‘goodwill’ payment of £4,000 by email in May 2016 and this was accepted. The Respondent however did not pay up. The Claimant brought claims against his employer and the issue of the £4,000 was raised during the employer’s cross-examination. Under oath, the employer reiterated that the offer still stood. After post-hearing discussions, the amount remained outstanding and the Claimant amended his claims to include a victimisation by not paying the sum offered.
The EAT dismissed this part of the appeal on grounds that there was no jurisdiction to entertain such a claim. It found that the offer was covered by judicial proceedings immunity given the context in which it was offered and further held that the sum fell outside of the scope of the Equality Act as it was a fresh offer and made under oath at the hearing, therefore the connection to employment (a fundamental part of the test) was not ‘close’.
This case is very fact specific but there are useful points made in the Judgment which are of general application. In particular, the EAT was of the view that the concept of ‘bringing proceedings’ embraced a decision to ‘continue proceedings’ and as such continuing with proceedings could amount to a protected act.