A number of useful points emerged from a decision of the Court of Appeal recently in a case brought by a former employee of the University of Oxford, Dr Deer. The case had a long and convoluted history involving no fewer than five claims. In simple terms, Dr Deer alleged that the University’s failure to provide her with a reference and rejection of her grievance relating to this amounted to victimisation which she alleged was the consequence of a claim she brought for sex discrimination whilst still employed.
The Court of Appeal decided that Dr Deer had the right to bring victimisation claims even though she was no longer employed by the University. In its judgment, the Court of Appeal echoed the decision in a previous case that the draftsman of the Equality Act 2010 had made an error in not reflecting Parliament’s clear intention that former employees should be able to bring victimisation claims.
One of the arguments put forward by Dr Deer was that the failure by the University to disclose documents in response to her request for personal information under the Data Protection Act amounted to an act of victimisation. The Court of Appeal held that the University was acting on the advice of lawyers when refusing to provide the information who had advised that disclosure of documents would take place at a later stage in the litigation. The withholding of the information was not prompted by the fact that the claimant had in the past brought a sex discrimination claim. This is a useful point to note if a claimant uses a Data Protection Act request as a tactic in litigation.
The Court of Appeal also made use of the power to require Dr Deer to pay a deposit before being permitted to pursue two of her claims to a full trial. It did so because of the “largely speculative assertions made in the pleaded case and having regard also to the cavalier way in which (Dr Deer) was willing to make unfounded allegations against the University.” Seeking an order that a claimant pays a deposit is a useful weapon in circumstances in which a claim is not so weak that the Court/Tribunal is willing to strike it out.
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