Victimisation

“Victimisation” is often used in a general sense to refer to being picked on or bullied. However it has a specific legal meaning in the Equality Act 2010 (EA 10).

Under section 27 EA 10, a person (A) victimises another person (B) if A subjects B to a detriment because:

• B does a protected act; or

• A believes B has done or may do a protected act.

A “protected act” is an act which involves either making a complaint or doing an act in connection with the EA 10, or bringing or participating in tribunal proceedings under the EA 10.

Making inquiries to find pay information for the purposes of an equal pay claim is a protected act (Section 77 EA 10: Discussions about pay).

Victimisation at work can take many forms. Examples include being denied promotion, being subjected to a poor performance appraisal, denied bonuses paid to other comparable employees, denied (or being given) an unsatisfactory reference, being excluded from the workplace, and so on.

Members who have previously been involved in discrimination claims should be told of their rights not to be victimised.

Even if someone later turns out to be mistaken when making an allegation of discrimination, this will not remove the protection from victimisation, as long as it was not done in bad faith.

The protected act need not be the only, or even the main reason for the detrimental treatment in order for the employer to be guilty of victimisation.

It is always unlawful victimisation to dismiss someone for lodging genuine grievances alleging discrimination unless there is evidence of bad faith. It doesn’t matter how many grievances are lodged, or even whether they are supported by objective evidence. It is irrelevant that other work colleagues are upset at being accused of discrimination on multiple occasions, that the working relationship is damaged, or that investigating multiple grievances uses management time and resources. Dismissing an employee for bringing multiple grievances will always be victimisation as long as those grievances are genuinely held (Woodhouse v West North West Homes Leeds Limited [2013] UKEAT 0007/12/0506).

The legal duty on the employer not to victimise does not end when the employment ends (Jessemey v Rowstock Limited [2014] EWCA Civ 185). For example, withholding a reference because someone complained about discrimination when employed will be unlawful victimisation. So will refusing to interview them for a new post:

The amount of time between the original complaint of discrimination and the refusal of the reference or interview is irrelevant. If the refusal is due at least in part to having complained of discrimination, it will be an act of victimisation.