ST HELENS MBC v MRS J E DERBYSHIRE & OTHERS (38) [2004] UKEAT 0952_03_2307

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0952_03_2307

Case No Appeal No. UKEAT/0952/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

ST HELENS MBCAPPELLANT

MRS J E DERBYSHIRE & OTHERS (38)RESPONDENT

Before

Mrs Justice Cox Mr G Lewis Mrs M T Prosser

Date 23 July 2004

[1]APPEARANCES For the Appellant DAVID BEAN QC MR SIMON GORTON (Both of Counsel) Instructed by: St Helens Borough Council, Legal Services Town Hall Victoria Square Corporation Street St Helens Merseyside WA10 1HP For the Respondent DAMIAN BROWN (Of Counsel) Instructed by: Messrs Thompsons Solicitors Martins Building Water Street Liverpool L2 3SX SUMMARY Victimisation complaint by local authority catering staff pursuing equal pay claims, upheld by ET. Letters written to them and to all other catering staff by Respondents before Tribunal hearing, warning of job losses if claims succeed and advocating settlement, thereby adversely affecting their relationships with workplace colleagues. Meaning of "treatment" in showing "less favourable treatment" than relevant comparator group. Appeal dismissed. THE HONOURABLE MRS JUSTICE COX Background and Procedural History This is the full hearing of an appeal by the Respondent employers (the Appellants) from a decision of the Liverpool Employment Tribunal, promulgated on 25 th September 2003, upholding the Applicants' complaints of unlawful victimisation contrary to section 4 of the Sex Discrimination Act 1975. The 39 Applicants were among 510 catering staff, employed by the Appellants, who had presented equal pay claims to the Tribunal in 1998. The majority of them were supported by their trade union, the GMB. The claims were resisted and subsequently the majority of them, some 470 in all, were compromised by payment of a substantial lump sum by the Appellants, to be distributed amongst those who had agreed to settle their claims. These 39 Applicants, however, did not accept the settlement terms offered and proceeded with their claims, which were eventually heard by the Tribunal in March 2001. They continued to have the support of the GMB and have been legally represented throughout. The equal pay claims, we are told, all succeeded and no appeal has been brought against the Tribunal's decision in those proceedings.

[2]On 19 th January 2001 however, just two months before the Tribunal hearing, the Appellants' acting Director of Environmental Protection, Paul Sanderson, had written two letters directly to the catering staff. The first was addressed personally to the Applicants who were still proceeding with their claims; and the second was addressed to "All Catering Employees", which included the 39 Applicants. After receipt of these letters the Applicants issued proceedings in the Tribunal at the end of January 2001 complaining of victimisation. They alleged that the sending of such letters amounted to an attempt to intimidate them into abandoning their claims and to blame them for the consequences if their claims were to be successful; and that this amounted to unlawful victimisation. The Applicants complained in their Originating Applications that the letters had caused them considerable distress and anxiety; and that they would adversely affect their relationships with their colleagues at work. The Appellants denied that the sending of the letters amounted to victimisation within the meaning of the 1975 Act.

[3]These victimisation complaints have had an unfortunate procedural history, to which it is necessary to refer in view of the issues which arose at the hearing before us. The complaints were first heard by a Tribunal under the Chairmanship of Mr. Reed on 24 th May 2001, on which date the Tribunal decided to hear no evidence, although the parties had come prepared to lead oral evidence. A decision with short extended reasons was promulgated on 30 th July 2001, dismissing the Applicants' complaints by a majority. The Applicants appealed to this Appeal Tribunal and the appeal was heard on 19 th November 2002, His Honour Judge Clark presiding. It was common ground between the parties at that hearing that the Tribunal decision contained a number of errors of law and could not stand. The EAT agreed, the appeal was therefore allowed and the matter was ordered to be remitted to a fresh Employment Tribunal for a re-hearing, at which evidence would be called.

[4]The judgment of the EAT on that occasion referred in some detail to the decision of the House of Lords in Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

, which had been reported since the promulgation of the Employment Tribunal's decision. At the conclusion of their judgment the EAT identified the questions to be determined by the Tribunal at the re-hearing, as follows:

"24 The questions for the Tribunal on the next occasion, it seems to us, are these: (1) The treatment complained of is the sending of the two letters of 19 January 2001. In sending those letters was the Respondent treating the Appellants less favourably than a person who had not brought and continued equal pay proceedings. Did they suffer a detriment not suffered by their comparator? (2) If so, was that less favourable treatment by reason that the Appellants had brought and continued equal pay claims? It is not enough that the existence of such proceedings influenced the Respondent's decision to send those letters. It must be shown that the reason for that decision was that the Appellants had brought and continued the proceedings. Conscious motive of intention to treat the Appellants less favourably is not a material consideration."

[5]The matter therefore returned to the Employment Tribunal where, on 11 th July 2003, it was re-heard, both sides being legally represented. The Applicants called one of their number, Denise Norman, to give oral evidence and it appears that the statements of two other Applicants were read. They also called Susan Lee, the branch secretary of the GMB, who were supporting both the equal pay claims and the victimisation complaints. The Appellants called Paul Sanderson, the author of the two letters. On this occasion the Tribunal upheld the complaints, for the reasons given in the Decision which is now the subject of this appeal.

[6]By their Notice of Appeal, settled by junior counsel, the Appellants raised a number of grounds of challenge to the Decision under the general headings of perversity, causation (or as they termed it "the honest and reasonable employer defence") and "the comparator point". It was ordered that there be a preliminary hearing ex parte in accordance with paragraph 9 of the EAT Practice Direction 2002, the purpose of which was to determine whether any of the grounds raised a point of law which gave the appeal a reasonable prospect of success at a full hearing. At that hearing, held on 5 th March 2004, His Honour Judge Ansell presiding, it was ordered that the appeal was to proceed to full hearing on one ground only "relating to the comparator point and less favourable treatment", referred to in paragraph 5.3 of the Appellants' skeleton argument, prepared for that hearing. The time estimate was given as half a day. The directions given by the EAT on that date included, at paragraph 9, "Liberty to the parties to apply on paper on notice to the other parties to vary or discharge this Order".

[7]The sole ground on which this appeal was permitted to proceed was therefore that presently contained in paragraphs 14 to 16 of the Notice of Appeal headed "The Comparator Point", raising issues as to the identity of the correct comparator group. In their judgment given at the preliminary hearing the EAT, in relation to this ground, stated at paragraph 8 that they could see some force in this argument and that they would "allow the matter to go forward to a full hearing".

[8]In relation to the other grounds of appeal, namely perversity and causation (termed the "reasonable and honest employer defence"), it is clear from the EAT's judgment that they regarded those grounds as unarguable, that is as not raising points of law which had a reasonable prospect of success at a full hearing. They therefore concluded, at paragraph 11, "thus if follows that we will let this matter proceed forward to a full hearing on the one issue of comparator". They did not go on expressly to dismiss the remaining grounds of appeal, but it is clearly to be implied from their judgment and from the terms of the Order made that they were doing so, in accordance with paragraph 9(15) of the Practice Direction.

[9]The Appellants did not seek permission to appeal against that decision. Nor have they applied at any stage, before the commencement of the full hearing today, to vary the Order in accordance with paragraph 9 referred to above, on the basis that the other grounds of appeal had not been expressly dismissed and that they wished to argue a "causation" ground of appeal. In their skeleton argument prepared for this full hearing, however, and without any earlier notice to the Applicants' representatives, the Appellants, by now represented by both leading and junior counsel, addressed two other grounds in addition to the one "comparator point", on which leave was given to proceed. At the start of the hearing Mr. Bean QC for the Appellants applied to us to be permitted to pursue both these other grounds.

[10]These grounds are as follows: (1) In addition to addressing arguments on the comparator point the Appellants raised a discrete point at paragraphs 7 to 10 of their skeleton argument that, on the facts found, the Applicants were not as a matter of law "treated less favourably" than the relevant comparators, whoever they were. It was not in dispute before us that this was effectively part of the comparator point, though not expressly addressed in the Notice of Appeal; and it was agreed that it had been argued before the Employment Tribunal. Since Mr. Brown for the Applicants was able to deal with this point and did not object, we gave leave to the Appellants to amend their Notice of Appeal to include the following ground in a new paragraph 16A:

"In any event the Respondents were not subjected to less favourable treatment than the relevant comparators"

. As will become clear later on in this judgment this was, in the event, the main plank of the Appellants' appeal on the comparator point before us; and grounds 14 to 16 in the Notice of Appeal were no longer pursued. (2) The Appellants sought to argue in addition that the Tribunal erred in law in their approach to causation, on the basis that the letters sent to the staff were part of the conduct by the Appellants of their defence and were not written because the applicants had brought proceedings. Mr. Bean acknowledges that this was a point which "did not commend itself to the EAT at the preliminary hearing". He submitted, however, that they did not expressly dismiss the appeal on that point and that we have a discretion to allow a point to be argued, notwithstanding the view taken at the preliminary hearing that a particular ground was unarguable. He therefore applied to vary paragraph 1 of the EAT Order made at the preliminary hearing dated 13 th January 2004, by adding the causation ground to the grounds of appeal to be considered at this full hearing. He also acknowledged during argument that, if we granted this application, he would in any event need to apply to amend the Notice of Appeal to include the causation grounds presently set out at paragraphs 11 to13 of his skeleton argument, which raise different issues from those presently contained under the causation head of challenge at paragraphs 12 and 13 of the Notice.

[11]In opposing the Appellants' application to vary the Order and to be permitted to argue the causation ground, Mr. Brown submits that no notice of their intention to apply to argue this ground was given before the skeleton argument was served and that it is too late to raise it now. It would alter the time estimate for this appeal considerably and he is not in any event presently in a position to deal with this additional ground. Further, notwithstanding that the EAT did not expressly dismiss the other grounds of appeal at the preliminary hearing, it is clearly to be implied that they did so; and the EAT Order was that only the one ground identified could proceed. The preliminary hearing procedure in this Appeal Tribunal ensures certainty of litigation and proper allocation of court resources. No appeal was brought against the EAT Order made on that date and currently that is the proper way to proceed if parties wish to argue before the EAT at the full hearing grounds which have been disallowed at the preliminary hearing.

[12]In our judgment, whilst the decision of the EAT at the preliminary stage did not state expressly that the remaining grounds of appeal were being dismissed, this is plainly to be implied from the terms of the Order read together with the judgment; and indeed from the fact that a reasoned judgment was being given, no judgment being required if grounds of appeal are all being allowed to proceed to a full hearing (see Practice Direction paragraph 9(16)). If the Appellants wished to argue this additional ground they should therefore have sought permission to appeal against paragraph 1 of the Order of 13 th January 2004, which limited the grounds allowed to proceed to a full hearing to the comparator point and less favourable treatment. This they have not done and in these circumstances we refuse the application to vary the EAT Order and to permit the Appellants to argue this ground now.

[13]Even if we had the discretion Mr. Bean submitted that we had in such circumstances, we would not in any event have exercised it in favour of the Appellants for the following reasons, against the background that they have been legally represented throughout this litigation: the lengthy delay in making the application; the lack of notice to the Applicants prior to service of the skeleton argument prepared for the full hearing; and the fact that the ground of appeal now sought to be argued in respect of causation was different from that expressed at paragraphs 12 and 13 of the Notice of Appeal.

[14]Even if we had granted the application we could not in any event have proceeded to deal with the point today, since it was not addressed in Mr. Brown's skeleton argument and he was not in a position to address us orally upon it. We therefore proceeded to hear the appeal on the less favourable treatment and comparator points only, to which we now turn. We shall deal with questions of permission to appeal against our decision at the conclusion of our judgment.

[15]The Facts The Tribunal set out their findings of fact at paragraphs 3(a) to (g). The Applicants, who are all members of the GMB, were employed in the catering department in the Appellants' school meals service. A job evaluation scheme put them on an equal footing with road sweepers, a predominantly male group of workers. Road sweepers, however, received bonus payments and no bonus scheme was in operation for the Applicants. They complained that this was a breach of the equality clause in their contracts of employment and in 1998 issued proceedings in the Employment Tribunal pursuant to the provisions of the Equal Pay Act 1970. Equal pay complaints were lodged at the Tribunal by 510 women in the catering staff. Subsequently 470 of the claims were settled but the Applicants decided not to accept the settlement terms offered and to continue to pursue their claims. The GMB, who were supporting the claims, instructed solicitors to act on the Applicants' behalf, who were on the record throughout the litigation.

[16]On 19 th January 2001 Mr. Sanderson, acting Director of Environmental Protection, sent two letters, the first one addressed directly to each Applicant who was continuing with her claim and the second addressed to all the catering staff, which included the Applicants.

(d) the Tribunal found:

"(d) The first letter says, among other things: - "

I am greatly concerned about the likely outcome of this matter [the Tribunal proceedings] as stated in the letter to catering staff. The Council have received no indication from your trades union that they would support any steps to address equality issues by means other than those which would have an immediate consequential increase in pay rates. As outlined at length, the service cannot withstand such a cost. "The original offer of settlement remains open to you and I would urge you to consider this, together with the information provided in this and my other letter regarding our commitment to achieving equality by other means, aimed at preserving the service and jobs. "I cannot over state the impact that the current course of action will have on the service and everyone employed within it." The second letter to all catering staff referred to the fact that "as a Tribunal date has been set for 19 th March to hear the claims and with no indication of a change in the trade union's position, then I must spell out to all staff the likely outcome". The letter went on to point out that the costs of a successful equal pay claim would be 1.5 million pounds for 2001/2002 and 1 million pounds in every year after that. The cost of a school meal, it was said, would rise to £1.60 a day. As the Tribunal found, the letter continued:

"The above costs will make provision of the service wholly unviable. In such circumstances the Council will be forced to consider ceasing the provision of the Service other than to those who are entitled to receive it by law i.e. free school meal provision. Only a very small proportion of the existing work force would be required for this. "

Regrettably, although many of you have chosen to work with the Council to address the issues of equality outside of the Tribunal by way of Single Status/Job Evaluation process, the continuance of the current claims and a ruling against the Council will have a severe impact on all staff." Mr. Sanderson concluded by informing the staff that the original terms of offer were still available to the remaining Applicants. Whilst it is not relevant to the issues to be determined in this appeal we record for completeness that, during his submissions, Mr. Bean informed us that, following the successful equal pay claims, the dire consequences predicted in these letters in January 2001 did not in the event materialise. The price of a school meal did increase by a third, take up apparently dropped by some 20 per cent and job losses were approximately 10 per cent, with no one having to be made redundant.

[17]The Tribunal found at paragraph 3(f):

"(f) Thus, the respondents were telling each applicant personally that if their Tribunal complaint continued, that might well do serious harm to the service and the employment of themselves and their colleagues. The colleagues were given a similar message, in particular the warning about school meals and the future for jobs."

On the evidence they had heard they found at (g) as follows:

"(g) The letters caused distress to at least some of the applicants, and incurred for them some odium. People spoke of the danger that they could not, if the bid for equality succeeded, afford school meals for their children. The families of road sweepers feared the loss of their bonus. Such was the reaction to the letters. Doubtless they conveyed it to the applicants in terms of reproach."

[18]The Applicants complained in their Originating Applications that this amounted to unlawful victimisation by the Appellants because they were "pursuing a claim for equal pay"; and the correspondence was calculated to turn members of staff against them and their fellow workers who were pursuing their claims. The Appellants contended, as the Tribunal set out at paragraph 2 of their Reasons, that the letters written contained a clear statement of their viewpoint and a needful warning of the harmful consequences of pursuing the claim for bonus. They were surely entitled to write to their employees telling them the truth and indeed it was more responsible to do so than not.

[19]The Tribunal referred to section 4 of the Sex Discrimination Act 1975.

(c) to (e) were as follows:

"(c) Who is the proper comparator? Happily, EAT (in their judgment on the appeal from the earlier decision of our colleagues) have provided us with the answer. The question is whether the 2 letters amounted to treating the applicants less favourably than a person who had not brought and continued equal pay proceedings. "(d) Did the respondents subject any applicant to a detriment? The answer was the same for all, since they all alleged the same detriment. We found that each applicant did suffer a detriment. Mr. Gorton for the respondents, asked pertinently: 'How can it be victimization to merely point out what a reasonably held belief of a party is in connection with the prosecution of a claim?' (he was considering particularly the question of detriment). Here is our answer. The letter of 19 January 2001 contained what was effectively a threat. It spelt out a danger that the applicants might deprive children of school dinners, and that they might cause redundancies among their colleagues. It amounted to an attempt to induce the acquiescence of individuals despite the view of their union. It was more than a matter-of-fact reminder of what might happen if they went on with a complaint. A professional representative can be expected to respond calmly to such a letter. But here was a direct approach to each individual. A letter pointing to the likelihood of dire, unpopular consequences is likely to frighten one not accustomed to legal controversy. It will provoke, not a dispassionate balancing of strengths and weaknesses, but fear and perhaps panic. It is directed against people who were in no position to debate the accuracy of the respondents' pessimistic prognostications. The reaction to such a letter may be, even where there is a well-justified belief in the justice of one's case, surrender induced by fear, fear of public odium or the reproaches of colleagues. Such a reaction, although prompted by emotion, is reasonable in the sense that it is a normal, sane human response to the prospect of an unpleasant consequence realistically perceived. Thus the letter was intimidating. The intimidation was such as to affect the applicants but not the others who had settled their complaints (not in the same way at any rate): the respondents treated the applicants less favourably than they treated those others. "(e) Here was a claim by women to be treated equally with men. Were the Tribunal proceedings the occasion of the less favourable treatment? They were. Here is how we reasoned that conclusion. We observed the distinction between, on the one hand, the respondents' right to protect themselves in litigation, and, on the other, the detrimental treatment as a response to the commencement of proceedings. That distinction is made in Chief Constable of West Yorkshire Police v Khan (2001) ICR 1065 . Here, the respondents did not, as they did in Khan's case, merely seek to avoid prejudicing their position in the litigation. They wanted the applicants to abandon their claims. They were reacting, if not to the commencement of proceedings, certainly to their continuance: they did not want to abide the event; they wanted to prevent an adjudication. The Tribunal case was not simply the setting for the detriment: its continuance was the efficient cause."

[20]The Issues The relevant provisions of the Sex Discrimination Act 1975 are as follows:

"4 Discrimination by way of victimisation (1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has - (a) brought proceedings against the discriminator … under … the Equal Pay Act 1970; (c) otherwise done anything under or by reference to this Act or the Equal Pay Act 1970 … in relation to the discriminator or any other person. 5 Interpretation (1) In this Act – (a) references to discrimination refer to any discrimination falling within sections 1 to 4; and (b) references to sex discrimination refer to any discrimination falling within section 1 or 2. 6 Discrimination against applicants and employees (2) It is unlawful for a person, in the case of a woman employed by him at an establishment to Great Britain, to discriminate against her – (b) by … subjecting her to any other detriment."

It is common ground that the authoritative interpretation of section 4(1), which is in the same terms as those contained in section 2(1) of the Race Relations Act 1976, is that provided by the House of Lords in the Khan decision. It is agreed that the House of Lords decided that the definition of victimisation has essentially three ingredients. The first is "in any circumstances relevant for the purposes of any provision of this Act", which is a reference to circumstances in respect of which discrimination is unlawful under the Act. This is known as "the detriment question". The second ingredient in the statutory definition requires a comparison between the treatment afforded to the complainant, who has done a protected act, and the treatment which was or would be afforded to other employees who have not done that protected act, the "less favourable treatment question". The third question is whether the Respondent's treatment of the Applicant was "by reason that" the Applicant had brought proceedings under the discrimination legislation, the "causation question".

[21]Mr. Bean accepts that no appeal can arise from the Tribunal's finding that the Applicants were all subjected to a detriment, given their findings of fact that the letters caused distress to at least some of them and incurred for them "some odium". It is accepted for the purposes of remedy that the claims will have to be examined individually.

[22]Mr. Bean's main challenge to the decision before us arises in relation to the finding as to less favourable treatment, which falls to be dealt with separately from detriment. The Applicants' distress is not sufficient for a finding that they were treated less favourably. He contends that the Tribunal erred in law in finding that the Applicants were treated less favourably, whether the proper comparators are non-litigants or fellow-litigants who have settled the claims (to which point we shall refer later on in this judgment). He submits that the letters of 19 th January 2001, which the Tribunal found amounted to less favourable treatment, were no more than "routine letters" written by parties to litigation. The first letter neither predicted nor threatened that the Applicants themselves would be singled out for redundancy or suffer other adverse consequences. On the contrary it emphasised that potentially the whole workforce would be affected. The second letter neither named the Applicants nor criticised them in any way. "Treatment" he submits must involve something more than just the writing of a letter or the making of critical comments specific to the litigation, which causes distress to an applicant. In relation to the Tribunal's findings at paragraph 4(d), he acknowledges that the letters of 19 th January contained a threat, but submits that it was no different from any respondent to a discrimination complaint telling the complainant that the claim will bankrupt the company if it succeeds. In order to amount to treatment which is less favourable and to victimisation within the Act the letters would have had to contain threats levelled directly against the individual Applicants, for example, that if they continued with their claims they would be fired or demoted. Simply telling them that the Council would go bankrupt, which may indirectly have the consequence that they are vilified by other members of staff, cannot constitute less favourable treatment within the meaning of the Act. If it does, it renders all public comment or communication to staff by respondents to discrimination or equal pay claims potentially actionable if it causes injury to the applicants' feelings.

[23]Mr. Brown contends that there was no error of law by this Tribunal, who answered the questions identified by the EAT in their judgment having regard to the particular facts and their findings on the evidence in this case. The Appellants have clearly abandoned the comparator point put forward in the Notice of Appeal and the point being advanced now is unarguable. Direct threats to the Applicants are not necessary in order to find that they were treated less favourably within the meaning of the Act and the Appellants are seeking to give that phrase an unjustifiably narrow interpretation.

[24]Our Conclusions We agree that this case, as is usually the position in cases involving allegations of discrimination, turns on its own particular facts and the Employment Tribunal's conclusions upon them. On those facts and conclusions we are all of the view that this appeal must fail. The primary purpose of the victimisation provisions in both the Sex Discrimination Act and the Race Relations Act is, as Lord Nicholls observed in Khan (page 1069 at paragraph 16), to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory rights or are intending to do so. At page 1072, paragraph 27, he stated that:

"The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act."

In Khan there was no dispute that the refusal of a reference constituted "treatment" for the purposes of the comparison. Lord Hoffman at paragraph 52 stated that:

"His requirement [for a reference] was refused when a similar request by someone else would have been granted. That seems to me to be less favourable treatment which the Tribunal found caused injury to Mr. Khan's feelings."

[25]It is common ground that the treatment which must be shown must be less favourable and not merely different or unfavourable treatment; and that whether treatment is less favourable will always be for the Employment Tribunal to determine on the particular facts of the case. We see no justification for the restrictive meaning sought to be placed by Mr. Bean on the word "treatment", appearing as it does in legislative provisions the purpose of which is to protect those who are complaining of discrimination and, in so doing, exercising rights given to them by that legislation.

[26]The combined experience of all members of this Appeal Tribunal leads us to recognise, as the context for these victimisation complaints, the particular sensitivities which can arise in public sector equal pay claims, often involving historical and allegedly discriminatory pay practices in the context of gender job segregation; the far reaching effects such claims may have, if successful, on pay structures or grading systems; and the potential vulnerability in the workplace of women pursuing such claims, particularly as regards their relationships with workplace colleagues in both applicant and comparator groups. In the course of such litigation, with solicitors on the record representing the Applicants and the Tribunal hearing just two months away, these Appellants were found by the Employment Tribunal(a) to have sent letters to the catering staff generally and to the Applicants personally at their place of work;

(b) to have drawn attention in those letters to the risk that, if their equal pay claims succeeded, children might be deprived of school meals and colleagues might lose their jobs; and

(c) to have so acted in an attempt to persuade the Applicants to accept the settlement terms and discontinue valid claims, in circumstances where reproach and vilification by their workplace colleagues was almost inevitable. In our judgment such conduct is clearly capable of amounting to "treatment" for the purposes of the comparative exercise within the meaning of section 4, even though there is no direct threat of any disciplinary or other sanction made to the individual Applicants. We do not consider such a direct threat to be a necessary element for these Applicants to prove, in order to succeed in showing that they have been treated less favourably in the circumstances of this case.

[27]Nor do we accept, in so deciding, that the consequence will be that employers who are respondents to discrimination complaints will inevitably be unreasonably constrained and unable properly to defend themselves from victimisation complaints in the way that Mr Bean suggests. Firstly, in order for a detriment to be found to exist, the test is whether a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment, thus incorporating the element of objectivity into the decision ( MOD v Jeremiah

[1980] ICR 13

, approved by the House of Lords in Khan , see page 1078 at paragraph 53. Secondly, as Lord Hoffman observed in Khan , at paragraph 50:

"The requirement that doing the protected act must have been the reason for the less favourable treatment is adequate to safeguard an employer who acted for a different and legitimate reason."

Thirdly, in this highly fact-sensitive area of the law, we do not consider in any event that our upholding of the Tribunal's decision on the particular facts of this case will have the far-reaching effects it is suggested may flow from our decision.

[28]In respect of that last observation we did not derive assistance from a series of hypothetical, factual constructs advanced by Mr. Bean, in his skeleton argument and orally, in an attempt to support his submissions as to the consequences which would flow from a decision in the Applicants' favour on the facts of this case. As we pointed out during oral argument, the answer to the question whether there was actionable victimisation in each of the examples advanced would differ, depending on the precise circumstances. This was not in our view a helpful exercise in determining the issue arising on the facts of the present case.

[29]Finally, in relation to the comparator point, Mr. Bean did not in the event pursue the submission that the Employment Tribunal at paragraph 4(d) wrongly identified the comparators in this case as the 470-odd fellow employees who had brought equal pay proceedings, but who had accepted a settlement offer and had not therefore continued them. He acknowledged that the Employment Tribunal were in fact answering the question they were directed to answer by the EAT, namely "whether the two letters amounted to treating the applicants less favourably than a person who had not brought and continued equal pay proceedings", the fact that the Applicants were continuing to pursue their claims being central to their complaints of victimisation, as is clear from the originating applications; and that section 4(1)(c) of the Act was sufficiently broad to include within the concept of the "protected act" the continuing of proceedings once brought. Whilst submitting that the correct comparison, in accordance with Khan , should in fact have been with employees who had not brought equal pay proceedings at all, he fairly accepted that in this case there was not and could not be any suggestion that the Appellants would have sent such letters to employees in that category. The comparative exercise in fact carried out by the Tribunal therefore made no difference to the outcome in this case, which would inevitably have been the same.

[30]For these reasons we therefore dismiss this appeal. At the conclusion of oral argument Mr. Bean indicated that, if we dismissed the appeal on the less favourable treatment point, he wished to apply for permission to appeal to the Court of Appeal. We refuse permission on the basis that our conclusions flow from the Tribunal's particular findings in this case and we consider that there is no real prospect of success for an appeal. Nor do we consider there to be any other compelling reason why permission to appeal on that ground should be granted.

[31]In relation to our refusal of the Appellants' application to be permitted to appeal on the additional "causation" ground, we refuse on the same basis the application for permission to appeal against our decision on that point. However, although we are not persuaded that there is merit in the Appellants' arguments we will, in the circumstances, extend the time for applying to the Court of Appeal for permission to appeal against the Order made by this Appeal Tribunal at the preliminary hearing on 13 th January 2004 until 14 days after the seal date of the Order on this appeal.