Victimisation

“Victimisation” is often used in a general sense to refer to being picked on or bullied. However, it has a very specific legal definition in the Equality Act 2010.

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

(a) B does a protected act; or

(b) 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 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.

Examples of unlawful 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 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 compensation awarded by a tribunal following a successful discrimination claim (Rank Nemo Ltd v Coutinho [2009] EWCA Civ 454).

Members who have previously been involved in discrimination claims should be told of their rights not to be victimised. Employees should never be in the situation of not wanting to challenge discrimination for fear of future employer action against them.

Tribunals can look beyond the reasons for less favourable treatment given to them by employers, to try to ascertain the real reasons for it. Victimisation will be unlawful even if it is sub-conscious (Nagarajan v LRT [1999] IRLR 572).

Even if an individual 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 maliciously. The EA 10 says that giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.