Warning of job cuts to pressure you off a discrimination claim can be unlawful.

The situation

A group of school catering staff brought equal pay claims against their council employer. Most of the group settled for a lump sum, but a smaller group of employees chose to carry on with their claims. The council's solicitors then wrote to everyone in the original group, including those who had already settled, warning that if the remaining claims succeeded, the council might need to make cuts elsewhere, including possible redundancies among the catering staff. A second letter went only to the employees still pursuing their claims, urging them to settle.

What the court found

The employees brought victimisation claims under the Sex Discrimination Act 1975 (the equivalent protection today sits in the Equality Act 2010The main piece of legislation protecting employees from discrimination at work. It covers nine protected characteristics including age, disability, sex, race, and religion, and makes it unlawful for a...). The House of Lords held that the letters could amount to a detrimentAny action your employer takes that puts you at a disadvantage, short of dismissal. In a whistleblowing or discrimination context, being moved to a worse role, excluded from meetings, or given an unfa..., even though the council's solicitors believed they were simply giving a fair and measured account of the financial position.

The key point is how the test for detriment works. It is not judged by whether the employer thought it was being reasonable. It is judged by whether a reasonable workerA legal category that sits between employee and self-employed. Workers are entitled to certain rights including national minimum wage, paid holiday, and protection from unlawful deduction from wages, ..., in the claimant's position, would or might see the treatment as working against them. The council argued that because its letters were honest and reasonable, it should not be found to have caused a detriment. The House of Lords rejected that. An employer cannot dress up pressure as plain information and expect that to be a defence.