Victimisation is a form of discrimination that happens when an employee is treated badly because they have done – or are believed to have done – a ‘protected act’ under the Equality Act 2010.
A ‘protected act’ includes things like:
- Making a complaint of discrimination or harassment
- Supporting someone else’s complaint
- Collecting information that could support a complaint
- Acting as a witness
- Saying something relevant to a complaint (even if it doesn’t support it)
Sometimes it’s obvious a protected act has taken place, for example, when someone clearly alleges race discrimination. But it’s not always that straightforward.
In Kokomane v Boots Management Services, the Employment Appeal Tribunal (EAT) reminded tribunals to look at the full picture when deciding if a protected act has occurred.
The Claimant, who was black, raised two grievances. In the first, she said she had been treated differently over an allegation of shouting. In the second, she complained about bullying and the failure to deal with her first complaint. She didn’t explicitly say this was because of her race.
The tribunal originally dismissed her victimisation claim, finding that she had not done a protected act. But the EAT disagreed, saying tribunals must consider the context in which the complaints were made.
The EAT clarified that a complaint doesn’t need to use the word “discrimination” or mention race specifically. It’s enough if the facts described could amount to discrimination in law. In this case, the employer knew she was the only black employee, had her grievance letter, and had heard concerns raised about racial stereotypes. These factors meant it was at least arguable she had done a protected act – and the tribunal should have considered this more carefully.
For further information, please contact Kerry Curd in the employment team on 01626 202406 or email KerryCurd@wbw.co.uk.
WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Chard, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
