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If a grievance is held to be unfounded, can an employee argue that they have suffered victimisation if they were treated less favourably in the way that the grievance procedures were applied?
Potentially yes, said the Court of Appeal (CoA) in the case of Deer v University of Oxford, on the grounds that the employee would have a legitimate sense of injustice that could give rise to damages if the less favourable treatment was an act of victimisation.
The background to this CoA case is detailed. In summary, Dr Deer was refused a reference from her doctoral supervisor at Oxford University (University) in 2008. Dr Deer alleged that the reason for this refusal was because of a complaint of sex discrimination that she had raised against the University in 2007 that had previously been resolved by way of a compromise agreement.
Dr Deer pursued victimisation claims against both her former professor and the University, at the same time initiating the University's internal grievance process. The University did not uphold Dr Deer's grievance and her subsequent appeal against that grievance determination. Dr Deer presented two further claims at the Employment Tribunal (ET), alleging less favourable treatment by the University in respect to the way her grievance and the appeal had been dealt with. Dr Deer also pursued a fifth claim, alleging that the University's refusal to respond to a data subject access request was also discriminatory.
The ET struck out Dr Deer's initial claim at a pre-hearing review, on the basis that there was no basis to link Dr Deer's refusal to provide a reference with the fact she had brought the settled claim. As a result, the Employment Judge concluded that because Dr Deer's grievance would have failed however the process had been conducted, Dr Deer had suffered no detriment.
Dr Deer appealed against the ET's decision to strike out her claims at an early stage. At the Employment Appeal Tribunal (EAT), the court agreed with the ET's judgment. Dr Deer appealed again to the CoA, who upheld her victimisation appeal in respect to the claims arising from her grievance and appeal. The fact that the outcome of the procedure would not have changed will be relevant to any assessment of compensation, but it does not mean that the victimisation discrimination claim cannot succeed.
Dr Deer's complaints regarding her grievance and appeal will therefore proceed to a full hearing to determine the merits of those claims.
This case illustrates the need to follow a careful and robust grievance process in every situation. Even in circumstances where an employer is satisfied that the substance of the grievance itself is without any foundation, it must still take care to investigate the circumstances carefully and give a reasoned response. A failure to do so may give rise to a victimisation claim in respect of the way the grievance itself, and any appeal, was dealt with.