Law professor criticised for “fishing expedition” in discrimination case

Friday 09 April 2021

A law professor has been criticised by the Royal Court for going on a “fishing expedition for evidence” upon which to base discrimination claims against members of the Governing Body of her previous employer, the Institute of Law.

The Institute of Law agreed that Professor Claire de Than was unfairly dismissed from her job as Director of Studies in 2019. She wanted to be able to sue individual members of the Governing Body - something the Employment and Discrimination Tribunal had already said she couldn't do in an interim judgment - but this appeal was dismissed by the Court yesterday.

Prof de Than was Director of Studies at the Institute of Law until January 2019, although she officially left in August 2019 at the end of her notice period.

That January, Prof de Than had been called to a meeting with two members of the Institute’s Governing Body, including its chair, Advocate Stephen Baker, where she was told that her relationship with the Dean of the Institute had “irretrievably” broken down and her contract was being terminated.

Between October 2019 and August 2020, Prof de Than filed three claims to the Employment Tribunal. These made a number of claims including work-related discrimination, sex and disability discrimination, unfair dismissal and victimisation.

The first claim was against the Institute, but the others were made against named members of the Governing Body.

In October, the Employment Tribunal refused permission for Prof de Than to sue individual members of the Governing Body. Professor de Than appealed but the Royal Court this week rejected that application on the grounds that the Institute was the proper respondent to the claims.

Pictured: The Employment Tribunal had already refused permission for Prof de Than to sue individual members of the Governing Body - the Royal Court rejected her appeal against this decision.

In his judgement, Commissioner Julian Clyde-Smith said: “In this case, it is the Respondent [The Institute of Law] that is the alleged discriminator, not Advocate Baker or any other individual Governor. As pleaded, there are no allegations against Advocate Baker or any other Governor justifying their inclusion as respondents in their individual capacities.

“On the contrary, when asked direct questions about this, the Appellant [Prof de Than] seemed to accept, quite candidly, that she had no evidence to support allegations of discrimination against any individual Governor. 

“In response to questioning, her approach was understood to be that all of the Governors should be added as respondents in their individual capacities and through disclosure orders against them, to discover whether there is any evidence to support an individual Governor being made personally responsible for the alleged discriminatory acts, should they be proved.

“In my view, this is a quite improper way to proceed and is close to an abuse of process. It involves adding some six respondents to a claim against the Respondent as the former or prospective employer, greatly increasing the costs and complexity of the proceedings in what can fairly be described as a fishing expedition for evidence upon which to base a personal claim against them. 

“Such an approach would be against the overriding objective and it would leave the door open for future claimants to routinely name directors of companies (or equivalent) to claims brought against an employer.”

Pictured: The Royal Court said that the Professor's actions had "greatly increas[ed] the costs and complexity of proceedings."

Prof de Than’s other claims against the Institute are unaffected by the Tribunal's interim judgment.