Victimisation

It is unlawful to “victimise” a worker because they have done a “protected act”, under S27 of the Equality Act 2010. 

The fundamental aim of this aspect of the legislation is to ensure that a worker is not prejudiced or penalised because they have exercised, or are attempting or intending to exercise, their statutory rights under the Equality Act.    This ensures that workers are safe to bring Employment Tribunal Claims to seek enforcement of the protections afforded to them under the Equality Act 2010, without fear of retribution.   What is important to note is that the protections are afforded regardless of the length of service of the worker, therefore ensuring that a worker who may risk the termination of their employment in raising significant issues under the Equality Act 2010 is able to do so, even where the Unfair Dismissal protection is not afforded to them.

However, the remit of a protected act is specific to the Equality Act and matters relating to the same, and can be summarised as mainly being:

1. Bringing proceedings under the Equality Act 2010 (or previous discrimination legislation)

2. Doing any other thing for the purposes of or in connection with the Equality Act 2010

3. Making an allegation that the employer (or someone else) has breached the Equality Act 2010 or previous discrimination legislation

4. Giving evidence or information in relation to any proceedings under the Equality Act 2010

Doing any other thing is can mean speaking out on behalf of another, for example if a worker was asked to be a witness to a Grievance which been raised which alleged racial harassment, in other words the protection is afforded to a person even where the issue has not been formally raised in the Employment Tribunal.

There are three steps to any claim:

1. Showing that the worker did (or it was believed by the Employer that they did) a “protected act”

2. That the worker has been subjected to a detriment

3. That the detriment is because of the protected act.

The exact limitations of doing any other thing are not yet known, and could potentially extend to convincing or persuading a colleague to bring a claim or raise a grievance in relation to a discriminatory act by another worker.

A detriment can also be quite wide ranging (wider than whistleblowing), and is in effect any disadvantage.  However, the disadvantage can not be minor or trivial.   A detriment would include being overlooked/rejected for promotion or being treated differently in relation to discretionary awards such as bonuses or performance related pay/benefits.  It is further believed that a detriment could include pressurising a worker to drop a grievance which alleges discrimination, refusing to permit holiday requests, or providing a poor reference.  There is however no time limit between the protected act and the detriment suffered as a result of that act.

It is of note that a worker must be careful to ensure that if a matter is harassment, that such a matter is in fact raised under S26 of the Equality Act 2010.

The fundamental difficulty however with victimisation is the requirement to show that the detriment is as a result of the protected act i.e. that the employer subjected the worker to a detriment because of the act.

An employer may put forward all manner of reasons why certain situations which would or could otherwise be considered a detriment, were in fact acting the normal course of events.  It is no longer necessary for a worker to compare their situation with another worker who had not done any protected act however it may be of benefit to do so in order to evidence the same.

It is currently unclear, and will fall to case law, whether the protected act was the only reason for the detrimental conduct of the employer or whether it is sufficient that the employer was motivated at least in part by the same.