Hello and welcome back to your weekly case law update. Is it too early to start saying weekly again? We are now in back to back updates, after all! Last week, as an apology for being incommunicado, we had three cases for you concerning holiday pay, unlawful deductions and shared parental leave.

This week we have two cases for you. Our updates are a lot like the recent weather – and only a touch less melancholy – barren for months, then two months’ worth in a couple of weeks! Our first case this week concerns victimisation and judicial procedure.

Victimisation is a relatively uncommon area of employment law but one that perhaps occurs on a subconscious basis quite often. Section 27 Equality Act 2010 defines victimisation as subjecting an employee or worker (or former employee or worker) to a detriment because they have done (or are believed to have done) a protected act.

Protected acts include bringing discrimination claims before the Employment Tribunal, raising grievances in relation to discrimination and giving evidence in colleagues’ discrimination complaints. Detriments can include dismissal, blocking career opportunities and being given unfavourable terms.

Section 39(3) Equality Act expands on this to include recruitment. In such cases the employer will victimise the prospective employee if the decision on whether or not to offer employment is owing to them committing a protected act.

In light of the above, today’s questions are:

Can an employer victimise against a former employee if they re-apply for a new position?

What factors can cause the fairness of a hearing to be compromised?

Prior to this claim, Ms Wess, the Claimant, had worked for the Science Museum Group, the Respondent, for over 30 years. The Claimant had access to the Respondent’s collections of exhibits and had an interest in researching the collection.

The Claimant was then made redundant and brought several unsuccessful employment tribunal claims including a claim for discrimination against the Respondent. Several years after the conclusion of her original tribunal claims, the Claimant reapplied for two positions with the Respondent. Her applications were sifted out and she was told that she was overqualified for the positions.

The Respondent felt that the Claimant would not be able to expand research interests in the position and thus her experience would not match the more junior role. However, the first job the Claimant applied for was subsequently awarded to a PHD graduate.

The Claimant believed the real reason her applications were rejected was due to her previous tribunal claims against the Respondent. She issued two claims for victimisation, one for each application.

The ET allowed one of the claims. The other was rejected because the applicant assessor was unaware of the Claimant’s previous discrimination claims, and, had objectively assessed the application. The ET held the Claimant had established a prima-facie case and the burden of proof had shifted onto the Respondent to show otherwise. The justification of the Claimant being overqualified was deemed unsatisfactory. However, at the hearing the Employment Judge appeared to fall asleep at least twice during evidence.

The Respondent appealed, citing the snoozes as grounds for not receiving a fair hearing. They also argued that the ET did not properly consider their justification for not offering the Claimant a position.

The EAT allowed both aspects of the appeal. It held that it was possible the judge had fallen asleep and this would have impacted on the fairness of the hearing. It also held that the ET did not properly consider how the Claimant’s experience and research ambitions would have made her unsuitable for the positions. The case was remitted back to ET.

The takeaway point:

Yes, it is possible to victimise a former employee who re-applies for a job. In this case it is likely that no victimisation occurred but employers should bare any such applications in mind and have valid justification for rejecting them. As proved by this case, even if the employer has valid reasons, a rejected application can result in litigation that lasts several years!

There are several factors that can cause the fairness of a hearing to be disputed. In the past this has included talking to the press before the conclusion of the hearing but can also include more obvious factors such as judges not paying proper attention and falling asleep! If such an incident does happen it is worth noting that the decision can be appealed. In this case there was a panel that reached a unanimous decision but the fact the judge fell asleep resulted in the whole case being overturned.