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Victimisation
[ch 7: pages 218-220]“Victimisation” is often used in a general sense to refer to being picked on or bullied, but it has a specific legal meaning in the EA 10. Section 27, EA 10 says there will be victimisation if a person (A) subjects another person (B) to a detriment because B does, or is believed to have done, 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).
A new ruling, summarised below, has broadened the law to allow scope for claims of “associative victimisation”:
Mr Thompson was disciplined at work for giving his high-viz jacket to a co-worker. He argued that the disciplinary action was an act of victimisation. He believed that its real cause was an earlier conversation with his manager about some ex-colleagues who had campaigned against racism at work. As a result of that conversation, he argued, he had become negatively associated in his manager’s mind with the ex-colleagues, who were seriously unpopular with management and even banned from site.
Thompson’s employer argued that he could not claim victimisation because the EA 10 only protects workers who have carried out a protected act themselves (for example, making a complaint of discrimination), not someone who is victimised because of someone else’s protected act. Disagreeing, the employment judge ruled that European law requires the UK to protect employees who are victimised because of the protected acts of others, such as co-workers. This could be achieved, said the judge, by simply changing the wording of section 27, so that an individual is protected if they are victimised “because of a protected act”. There has been no appeal against this ruling.
Thompson v London Central Bus Company Limited [2015] UKEAT/0108/15/DM
Victimisation at work can take many forms. Examples include being denied promotion, given a poor performance appraisal, denied bonuses paid to other comparable employees, denied a reference, (or being given an unsatisfactory reference), being excluded from the workplace, and so on.
In Das v Ayrshire & Arran Health Board [2015] UKEATS/0021/14/SM, it was victimisation for a health board to delete an advertised vacancy after discovering that the only short-listed candidate had claimed against the NHS for discrimination in a previous role. However, the compensation was reduced to reflect evidence that (for non-discriminatory reasons) Das had only a “one-in-10” chance of being awarded the job, if the interview had gone ahead as originally planned.
To succeed in a claim for victimisation, the protected act must be one reason for the detrimental treatment (even if subconscious), but it need not be the only reason.
Members who have previously been involved in discrimination claims should be told of their rights not to be victimised.
In Thompson v London Central Bus Company Limited [2015] UKEAT/0108/15/DM (see above), the EAT said it is “entirely possible” to imagine a situation in which membership of an organisation that campaigns against discrimination, such as a trade union, could cause an employer to victimise an employee.
An individual will be protected from victimisation even if their original allegation of discrimination turns out to be mistaken, as long as it was not made in bad faith (for example, knowing it was not true).
It is always victimisation to dismiss someone for lodging genuine grievances alleging discrimination, unless there is evidence of bad faith. It does not matter how many grievances are lodged, or even whether or not they are supported by objective evidence. It is irrelevant that other work colleagues are upset at being repeatedly accused of discrimination, that the working relationship is damaged, or that investigating multiple grievances uses up management time and resources. Dismissing an employee for bringing multiple grievances about discrimination is always 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 or denying an interview because someone complained about discrimination in their last job will be victimisation.
As long as the negative treatment is due at least in part to the protected act, it doesn’t matter how much time has lapsed between the two acts (for example, between lodging a grievance complaining of discrimination and getting a bad reference). However, in practice, the longer the gap between the two acts, the harder it will be to produce the evidence needed to suggest that they are linked.