4. Victimisation

Section 27 of the Equality Act 2010 (EA 10) makes it unlawful for an employer to victimise someone (of both existing and past staff) because they have made complaints of discrimination. This is the case irrespective of whether the complaints themselves are upheld.

Discrimination by way of victimisation is where someone is treated less favourably because they have:

• brought proceedings on the grounds of discrimination — section 27(2)(a) of the EA 10;

• given evidence or information connected with proceedings brought by someone else — section 27(2)(a) of the EA 10;

• done anything else over a discrimination complaint — section 27(2)(a) of the EA 10;

• alleged a breach of discrimination law, or where it is known that they intend to do so — section 27(2)(a) of the EA 10; or

• made or sought a “relevant pay disclosure” to, or from, a colleague (for example, trying to find out salary information with a view to bringing an equal pay claim in the tribunal) — section 77 of the EA 10.

The following example is taken from the Equality and Human Rights Commission’s draft Code of Practice on Employment (EHRC Code):

Both existing and past employers can be liable if they victimise those who have alleged discrimination. Victimisation while in work is most likely to involve workers being denied promotion, subjected to a poor assessment or not being given bonuses to which they would have expected to have an entitlement.

The legal duty on the employer not to discriminate does not end just because the employment has ended — it continues in relation to any benefits arising from the employment relationship. What this means in practice is that if the employer would normally act in a certain way towards ex-employees, then all must expect the same treatment, regardless of whether or not they had complained about discrimination while in the job. For example, if employers normally provide ex-employees with references, they must provide them for all, including those who have raised discrimination issues.

Other examples of discrimination by way of victimisation include:

• special monitoring of the employee’s attendance record following his complaint about race discrimination (Lindsay v Alliance & Leicester [2000] ICR 1234);

• giving employees unsatisfactory references because they had taken discrimination claims;

• not allowing an ex-employee access to the workplace so that he could pick up some business cards, because the employee had taken (but lost) a discrimination claim (Jones v 3M Healthcare [2003] IRLR 33 — joined case with Rhys-Harper v Relaxion Group [2003] IRLR 484);

• refusing an employee the right to take a small amount of time off to meet with a Racial Advisory Council after he had claimed race discrimination when, in other circumstances, employees would have been allowed time off (TNT Express Worldwide v Brown [2001] ICR 182); and

• refusing to pay to an individual, compensation awarded by a tribunal following a successful discrimination claim (Rank Nemo Ltd v Coutinho [2009] EWCA Civ 454).

Representatives need to monitor pay and benefits packages to assess whether these reveal evidence of victimisation. Members who have previously taken, or assisted in taking, discrimination claims should be told of their rights not to be victimised. When leaving their job, staff who are known to have raised issues of discrimination should similarly be informed of their rights. Employees should never be in the situation of not wanting to challenge discrimination for fear of future employer action against them.

A landmark ruling of the House of Lords (now Supreme Court) in the case of Nagarajan v LRT [1999] IRLR 572, held there could be circumstances where an employer genuinely believed that the reason for the less favourable treatment had nothing to do with the individual’s previous discrimination claim. Nevertheless, where the evidence permitted the tribunal to infer that victimisation had been the motive it could do so. The facts were as follows:

The Nagarajan case is of wider importance. This is because it establishes that the tribunals can look beyond the reasons for less favourable treatment given to them by employers, to try and ascertain the real reasons for it.

The victimisation provisions will not apply where the allegation, evidence or information was false and not made in good faith. As long as the individual making the complaint or giving evidence is not doing it out of malice, they will have protection from victimisation.

Street v Derbyshire Unemployed Workers’ Centre [2004] IRLR 687, a case under the whistleblowing provisions which are similar to those for discrimination law, gives some clues as to how the term “good faith” would be interpreted. The case concerned an employee who alleged financial impropriety. Her claims were investigated and the management committee held them to be “clearly unfounded and based on mischief making”. The Court of Appeal confirmed that a disclosure made purely out of personal antagonism was not a protected disclosure, even if the person making it genuinely believed it to be true. The motive for which a person does a particular act can, according to this ruling, “change its character from good to bad”.