Mr N Roberts (counsel) For the v Respondent — 2021

This was a preliminary hearing about a second claim brought by a current employee who had been on long-term sick leave since 4 February 2019. The second claim arose out of two emails sent by the respondent's in-house solicitor during the litigation in the claimant's earlier case, and out of the respondent's handling of the claimant's subsequent internal complaint. The tribunal also set out the parties' agreed issues on victimisation and harassment and considered whether judicial proceedings immunity, or the scope of the Equality Act 2010 and the Equal Treatment Directive, prevented the claims from proceeding.

On the two emails, the tribunal considered that the first email was likely to be genuine interparty correspondence covered by judicial proceedings immunity and/or outside the scope of the Equality Act 2010 and the Equal Treatment Directive. It considered the second email was likely not covered by judicial proceedings immunity, but still likely outside the statutory scope. If that jurisdictional analysis was wrong, the tribunal said the victimisation case about the emails still had little reasonable prospect of success because it was unlikely the claimant could establish a detriment or the necessary causal link to the protected acts, although the tribunal said the harassment allegation based on the emails could potentially succeed if jurisdiction were established.

The tribunal then dealt with the grievance-related complaint. It found that the respondent's conduct in postponing a substantive response to the internal complaint was not protected by judicial proceedings immunity, but it considered the real reason for the postponement was that the complaint had become part of ongoing litigation and should not be addressed substantively at that stage. On that basis it struck out the victimisation claim relating to detriment 2(c) for no reasonable prospects of success. In the operative order it made deposit orders under Rule 39 for the victimisation allegations about detriments 2(a) and 2(b), and for the harassment allegations about detriments 2(a) and 2(b), but it did not finally determine any compensation at this stage.