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 in work could include being denied promotion, subjected to a poor performance appraisal or being denied bonuses that are being paid to other comparable employees.

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 (see Chapter 3);

• 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);

• refusing an employee the right to take a small amount of time off to meet with a Racial Equality 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.

In Woodhouse v West North West Homes Leeds Limited [2013] UKEAT 0007/12/0506, it was victimisation to dismiss an employee for making multiple race discrimination complaints against his employer and named work colleagues. The employer argued that his multiple grievances and tribunal claims (10 in total) showed that Woodhouse had lost confidence in his employer and that since he was likely to go on making complaints, the working relationship could not continue. They also suggested that it distressed co-workers to be repeatedly wrongly accused of racism and that investigating grievances used up valuable resources.

Finding in Woodhouse’s favour, the EAT said his sacking was clear victimisation. It is not unusual for a victim of discrimination to be regarded with hostility and treated as irrational by those on the employer’s side, said the EAT, or for a victim of discrimination to suffer multiple grievances. It would be a “slippery slope” to deny someone a remedy just because the employer thinks they are irrational, or because they have lodged multiple grievances and are likely to continue to do so.

The Woodhouse case confirms that it will always be unlawful victimisation to dismiss an employee for lodging grievances alleging discrimination, unless there is evidence of bad faith. It doesn’t matter how many grievances are lodged, or even whether the fears of discrimination are supported by objective evidence.