Victimisation 





The term “victimisation” has a specific legal meaning in discrimination law. Laws prohibiting victimisation are intended to prevent people being deterred from enforcing their rights under the EA 10 through fear of employer retaliation.



It is victimisation to subject another person to a detriment because of a protected act (section 27, EA 10, Thompson v London Central Bus Company Limited [2015] UKEAT/0108/15/DM). 




A “protected act” is doing something to enforce a right under the EA 10, such as:



• bringing a discrimination claim in the tribunal;



• alleging discrimination at work, during work, or after it has ended;



• acting as a witness in a colleague’s tribunal claim;



• raising a grievance alleging discrimination or supporting someone else’s grievance; 



• campaigning or organising at work to improve conditions for workers with a protected characteristic; or



• making inquiries to find pay information for the purposes of an equal pay claim (Section 77, EA 10).



There can be victimisation even if the protected act has not yet happened. For example, it would be victimisation if an employer were to discover that an employee was planning a grievance alleging discrimination and responded by sacking him or her. 



Victimisation at work can take many forms. Examples include being denied promotion, given a poor performance appraisal, being denied bonuses or a reference (or being given an unsatisfactory reference), being excluded from the workplace, having a job opportunity withdrawn and so on. 




There is no need to have the relevant protected characteristic to claim victimisation. For example, it would be victimisation to refuse to promote someone of a different ethnic origin because they gave evidence to support a colleague’s grievance of race discrimination. 



It can also be victimisation if you are penalised for associating with someone else who does a protected act. For example, it would be unlawful to discipline someone because they are known to associate with someone who is giving evidence in a tribunal claim against the employer for discrimination — although the link between the protected act and the negative treatment may, in practice, be hard to prove (Thompson v London Central Bus Company Limited [2015] UKEAT/0108/15/DM). 



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. 





There is protection even if the original allegation of discrimination turns out to be mistaken, as long as it was not made in bad faith (section 27(3), EA 10). Bad faith here means “dishonesty”, that is, deliberately making false allegations of discrimination (Saad v Southampton University Hospital NHS Trust [2018] UKEAT/0276/17/JOJ). 


There is protection from victimisation as long as the target of the negative treatment genuinely believes that discrimination has taken place, whether or not that belief is “reasonable”. It is always 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, that co-workers are upset at being accused of discrimination, or that management resources are used up investigating multiple grievances. There is protection from victimisation as long as the grievances are genuinely held (Woodhouse v West North West Homes Leeds Limited [2013] UKEAT 0007/12/0506).


The employer’s legal duty 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 does not matter how much time has passed between the two acts (for example, between lodging a grievance about discrimination and getting a bad reference). However, in practice, the longer the gap between the two acts, the harder it will be to show that they are linked.