Claims of victimisation are less common than many other types of discrimination complaint. They arise where a claimant is subjected to a detriment because they have done, or the employer believes they may do, a "protected act". In circumstances where an employer is taking action that could be alleged to be a detriment, it needs to be aware of whether a protected act could be linked to it. The action taken could be selecting an employee for redundancy or taking disciplinary action. These steps may have been carried out fairly and for reasons unrelated to an earlier protected act, but an employer will be in a stronger position to defend a victimisation claim if it can recognise a protected act when one occurs.
What is a protected act?
A "protected act" is defined in the Equality Act 2010 ("the Act"). It includes bringing proceedings under the Act, giving evidence in connection with proceedings under the Act, alleging that someone has contravened the Act, or doing any other thing for the purposes of, or in connection with, the Act. Sometimes it will be easily identifiable — for example, an employee may have raised a grievance about discrimination or may have given evidence on behalf of a colleague who has made a discrimination claim. However, the case of Kokomane v Boots Management Services Ltd highlights that overt references to discrimination are not required for a protected act, and employers need to be conscious of the context in which a complaint is made.
Background
The claimant had raised two grievances in April and October 2020. She believed she had been treated differently to other staff members following an incident where she had been accused of shouting. She did not specifically allege discrimination. However, during a grievance hearing she did raise the issue of perceptions around shouting being connected to black women in a negative way. This was reinforced in the internal appeal against the grievance outcome. The claimant was also the only black employee at her place of work.
The following year the claimant was selected for redundancy. She claimed her selection was linked to the grievances she had raised. She argued the grievances were protected acts, given she had raised issues of racial stereotyping. An employment tribunal disagreed, dismissing the victimisation claim.
On appeal, the Employment Appeal Tribunal found the tribunal had used too narrow a definition of what amounted to a protected act. The tribunal had failed to analyse the context in which the grievance had been raised. In particular, what was important was how the employer would have understood the complaint being raised by the claimant. In this case, the employer knew the claimant was the only black employee and that the complaint was about a difference in treatment. It also knew she had been accused of shouting and had raised an issue of racial stereotyping connected to that.
What does this mean for employers?
The primary takeaway for employers is that context is all-important when considering employee complaints. For a protected act to have occurred, an employee need not have specifically alleged discrimination or breach of the Act. What is important is what the employer would have understood the complaint to be about, taking into consideration the full context in which it was made.
The initial burden of proof lies with an employee to show a protected act has taken place and that, in the absence of adequate explanation, they suffered a detriment because of that protected act. If they succeed in that, it will then be for the employer to prove a non-discriminatory explanation. If that explanation is not credible, then a tribunal can conclude that victimisation has occurred.
An employer will be better able to provide a credible, non-discriminatory reason for action taken against an employee if they have, firstly, dealt promptly and thoroughly with grievances or complaints that might subsequently be identified as protected acts. Secondly, it is essential that any action that could be identified as a subsequent detriment is carried out fairly and in accordance with relevant procedures. Accurate, contemporaneous records of decisions taken and the reasons for them will be valuable in demonstrating non-discriminatory motives.
