Victimisation claims covered by judicial immunity
Judicial proceedings immunity whereby a witness enjoys absolute immunity from any action brought on the ground that his or her evidence is false, malicious or careless extends to victimisation claims.
The Employment Appeal Tribunal (“EAT”) held that a complaint of victimisation could not be pursued based on alleged untruths contained in witness statements served in previous discrimination proceedings. Case law had already established that judicial proceedings immunity applies to evidence given in discrimination proceedings. The EAT’s opinion was that there was nothing exceptional about victimisation complaints which would suggest that the principle should be disapplied.
P brought a claim of race discrimination and unfair dismissal which was dismissed on the grounds that he had not complied with the statutory grievance procedure. P later sought to bring a claim of victimisation, arguing that six witness statements on behalf of his former employer contained untruths and that the reason for this was that P had done a protected act (bringing his first race discrimination claim).
All the witness statements were found to have attracted judicial proceedings immunity and the employment judge struck out the claim on the basis that it had no reasonable prospect of success.
The President of the EAT considered that permitting claims based on the content of evidence given in prior proceedings would both discourage witnesses from participating in the administration of justice and encourage claimants to seek to resurrect failed claims by way of collateral proceedings.
It is timely that the EAT has confirmed the position as UK employers face an ever increasing number of victimisation claims.