Strike Out and Detriment

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.

May an employment tribunal strike out a victimisation claim based on a procedurally flawed grievance process if removal of the flaw would have made no difference to the outcome of the grievance?

Not usually, held the Court of Appeal in Deer v University of Oxford.

The Claimant, a former PHD student, appealed the dismissal at pre-trial review of her victimisation claims for a defective grievance investigation and appeal process consequent upon earlier claims.

The tribunal found there was no detriment for the purposes of a victimisation claim because it appeared to be the case that any cure of the procedure would not have made a difference to the outcome. A further appeal on a rejection of a DPA request was rejected on other grounds.

The Court of Appeal, upholding the Claimant’s appeal in relation to grievance procedure (and substituting deposit orders), held the Claimant’s sense of injustice was capable of being a detriment in and of itself. The fact that curing the procedure would have no effect on the outcome, whilst relevant to remedy, was not perilous to liability in a claim of this nature.

The Court reminded itself: “…although the concepts of less favourable treatment and detriment are distinct, there will be very few, if any, cases where less favourable treatment will be meted out and yet it will not result in a detriment.” (paragraph 26)