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Victimisation

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Last updated 24th January 2025 (part update 28th August, 2026).

Victimisation under s.27 Equality Act 2010 (EqA) is where an employer or service provider etc subjects a person to a detriment (ie treats them badly) because they did anything in connection with the EqA – for example, because the person made or was involved in a discrimination claim. The EqA makes this unlawful.

Being ‘victimised‘ because of one’s disability is not what the EqA calls victimisation. That is likely to be ‘harassment’ within s.26 EqA, or it may be another sort of discrimination.

Summary

‘Victimisation’ can arise if (broadly) an individual has:

  • made a claim under the EqA, or
  • alleged a breach of it, or
  • given evidence or information in connection with someone else’s claim, or
  • done anything else in connection with the EqA.

The EqA makes it unlawful to subject the individual to a detriment because of this. The same applies if the employer etc just believes the individual did it. Pre-EqA discrimination claims etc are also covered.

A person brings a grievance for disability-related harassment. As a result she is turned down for promotion. This would be unlawful as victimisation.

A customer complains to his local supermarket about staff there making fun of his stammer. The customer subsequently finds that staff there are even more rude to him, or try not to serve him. Assuming this is because of his complaint, it should be unlawful as victimisation.

Victimisation which happens after the employment or other relationship has ended can also fall within the EqA: below Post-employment victimisation is covered.

Technically, victimisation under s.27 EqA is where A subjects B to a detriment because B does a ‘protected act’, or because A believes that B has done, or may do, a protected act. So below I discuss:

  • What is a ‘protected act‘? It may be an act in relation to someone else’s EqA complaint, and the complaint may be against a third party.
  • What is a ‘detriment‘? This is wide. The basic question is whether the treatment is of such a kind that a reasonable worker (or customer etc) would or might take the view that it was to their detriment.
  • What does ‘because‘ mean? The protected act need not be the only or main cause of the detriment.

If one is claiming for some other form of discrimination, it is worth considering whether there has also been ‘victimisation’, and adding that to the claim. A victimisation claim can succeed even if the main discrimination claim fails. Below Victimisation may be claimed alongside something else.

A false allegation made – or false evidence or information given – in bad faith is not a protected act, so victimisation protection does not apply. There are also other limited circumstances where an employer etc may be able to argue that the detriment is because of circumstances surrounding the complaint, rather than the complaint itself.

Legislation, Codes and guidance

The most recent guidance is chapter 2 of the 2024 Sexual harassment and harassment at work: technical guidance (EHRC website). Also Chapter 9 of the 2014 Technical guidance on further and higher education

The legislation is s.27 EqA (legislation.gov.uk). Statutory Codes of Practice are: Employment Code, Chapter 9; Services Code, Chapter 9.

What is a ‘protected act’?

Victimisation is where a person (A) subjects another person (B) to a detriment because either:

  • B does a protected act, or
  • A believes that B has done, or may do, a protected act. (s.27 EqA)

‘Protected act’ is defined in s.27(2) EqA. There are examples in the Summary above. It means any of the following:

It is apparent from that wording that the proceedings or allegation etc may be against someone else (below), such as a previous employer or, in some cases, may relate to a complaint by someone else (below).

References to the EqA here include previous anti-discrimination legislation such as the Disability Discrimination Act 1995. This is by virtue of article 8 of SI 2010/2317. ‘Previous enactments’ are listed in article 1. So pre-2010 claims and allegations etc are also ‘protected acts’ within s.27 EqA.

There need not have been an actual breach of the EqA. A claim for victimisation can succeed even if the discrimination claim fails: below Victimisation may be claimed alongside something else. But a false allegation made – or false evidence/information given – in bad faith is not protected.

The claimant does not need to have actually done a protected act. A belief of the employer or service provider etc can be enough. Below Protected act: Belief.

‘Protected act’: Complaint may be against a third party

The person against whom the claim or allegation was made may be different from the person who victimises the claimant because of it:

A company offers a job subject to references. The reference from a former employer states that the person brought a discrimination claim. As a result the company withdraws the job offer, or offers the job on less favourable terms (eg a longer probationary period). This is likely to be unlawful as victimisation.

Bouabdillah v Commerzbank AG (bdbf.co.uk) [2013] EqLR 651, Employment Tribunal, April 2013.
An employee was dismissed when her employer found out she had brought discrimination proceedings against her previous employer. She succeeded in a claim for victimisation.

Note: The tribunal rejected the employer’s arguments that the dismissal was for other reasons, eg because the employee had misled it. It may be disputed in future whether it matters that an employee concealed proceedings against a former employer. See further below ‘Because’: Any exception for circumstances surrounding the complaint?

Kirby v Manpower Services Commission (below), EAT, [1980] ICR
A clerk at a job centre claimed he was victimised by his employer because he reported to a local Community Relations Council possible race discrimination by other employers. This was held to be a protected act within the then equivalent of s.27(2)(c).

‘Protected act’: Complaint may also be by a third party

The person who is victimised – ie who is subjected to the detriment – need not necessarily have made an EqA complaint themself, or be the victim of the discrimimation (Kirby above), provided they have done something within the definition of ‘protected act’:

Under (b), a person who gave evidence or information in connection with tribunal proceedings brought by someone else is still protected against victimisation.

The Employment Code (para 9.8) even gives an example of a senior manager being victimised by a director after the manager found in favour of an employee’s complaint for harassment. This is presumably under (c) and/or (d).

There the detriment is because of a protected act done by the claimant, albeit in connection with someone else’s complaint. As to whether s.27 can apply to someone who is victimised because of someone else’s protected act, see below Victimisation ‘by association’?

Protected act: Belief

The claimant does not need to have actually done a protected act, provided the employer or service provider etc (A) subjects the claimant to detriment because A believes that the claimant has done, or may do, a protected act. (s.27(1)(b) EqA)

For example, the employer etc may have heard a rumour that the person will complain of discrimination, or may have heard of a discriminatory incident and be concerned that the person will complain.

The 2024 Sexual harassment and harassment at work: technical guidance (above), para 2.2, makes the point that there is no need for the worker to have any intention of making a complaint.

‘Detriment’

A person (A) victimises another person (B) if A subjects B to a ‘detriment’ because of a protected act (or relevant belief).

According to the Employment Code para 9.8: ‘Generally a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage’. The Code (para 9.8-9.9) gives some examples. It says an unjustified sense of grievance alone would not be enough to establish detriment. However, a threat made to the claimant – eg to dismiss them, or to give them fewer hours – which it is reasonable for the claimant to take seriously might be a detriment.

This reflects case law – which binds lower courts, unlike the Employment Code itself. The EAT in Warburton below said the key test is whether the treatment is of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment. Accordingly, said the court, it should not be particularly difficult to establish a detriment.

Warburton v Chief Constable of Northamptonshire Police (bailii.org), Employment Appeal Tribunal (EAT), 2022
An officer’s application to join Northamptonshire police force was delayed by the force putting its vetting process on hold. The claimant argued that this delay was at least partly due to ongoing employment tribunal proceedings against his former employer alleging unlawful discrimination. In holding that this delay was not a ‘detriment’, the employment tribunal seems to have considered whether Northamptonshire police acted reasonably in putting the vetting on hold [§54, 55, 58]. The EAT held that the tribunal had applied the wrong test.

The EAT said the parties accepted that ‘detriment’ has the meaning given in the House of Lords case of Shamoon v Chief Constable of the Royal Ulster Constabulary (bailii.org), particularly in the judgment of Lord Hope at §33-35. Detriment was to be interpreted ‘widely’ in this context. The key test for present purposes was, said the EAT: ‘Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?’ It was not necessary to establish any physical or economic consequence. An unjustified sense of grievance would not pass this reasonable worker test. However, it was enough that a reasonable worker would or might take such a view. The tribunal might be of one view, and be perfectly reasonable in that view, but if a reasonable worker (although not all reasonable workers) might take the view that, in all the circumstances, it was to his detriment, the test was satisfied. ‘It should not, therefore, be particularly difficult to establish a detriment for these purposes.’ [§48-51]

The reasonableness of the employer’s actions might be relevant to the reaction of the reasonable worker. However, this was not quite the same as determining whether the treatment of the claimant by Northamptonshire police was of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment [§54].

The EAT also discussed the meaning of ‘because’ (below).

The 2024 Sexual harassment and harassment at work: technical guidance (above) discusses detriment, with examples, at para 2.16-2.18.

As to how far steps taken by an employer etc in conducting litigation (or to protect themselves in relation to it) can be unlawful victimisation, see below Technical note: Steps within litigation.

‘Because’

The detriment must be ‘because’ B does a protected act (or ‘because’ A believes that B has done, or may do, a protected act).

In Warburton v Chief Constable of Northamptonshire Police (bailii.org), 2022, summarised above, the EAT held (§64-65) that the test is whether the protected act ‘had a significant influence on the outcome’. This normally requires an examination of ‘the mental processes’ of the alleged discriminator.

For more on this, see the similar test for direct discrimination. However, victimisation requires no comparator (Warburton at §30, subject to §69).

It is evident from what the EAT says that the protected act need not be the only or main cause of the detriment, again like direct discrimination. Similarly the 2024 Sexual harassment and harassment at work: technical guidance (above) at para 2.18, says that the protected act need not be the only reason for the detriment.

Unsuprisingly, an employer etc cannot argue there is no victimisation because it would have subjected a person to the same detriment if they had brought a non-EqA claim, such as a claim for unfair dismissal. ‘Otherwise the employer could escape liability by showing that his regular practice was to victimise anyone who did a class of acts which included but was not confined to the protected act’: Carozzi v University of Hertfordshire (bailii.org) [2024] EAT 169, at para 31-36.

See also below Is knowledge of a specific protected act required?

‘Because’ : Any exception for circumstances surrounding the complaint?

S.27 says that giving false evidence or information, or making a false allegation, is not protected if the evidence or information is given, or the allegation is made, in bad faith (s.27(3) EqA). See below Bad faith.

Where allegations are not in bad faith, it has been held that even a ‘serial complainer’ can potentially claim victimisation:

Woodhouse v West North West Homes Leeds (bailii.org) Employment Appeal Tribunal (EAT), 2013
Over a period of four years, the claimant had lodged ten internal grievances alleging race discrimination. He also brought seven employment tribunal claims. They were almost all found to be ’empty allegations without any proper evidential basis or grounds for his suspicion’. The employer dismissed him, because of a breakdown in trust and confidence. The EAT held this was unlawful victimisation. The grievances and claims were ‘protected acts’ and the dismissal was because of them.

However, there are some cases where an employer can ‘as a matter of common sense and common justice’ say that the reason for the detriment was not the complaint as such but some feature of it which can properly be treated as separable, for example:

  • the claimant had a mental illness which was likely to lead to unacceptably disruptive conduct in future (but see below Additional/alternative claim under s.15 EqA?),
  • the complaint was couched in terms of violent racial abuse, or accompanied by threats of violence
  • the complainant insists on making it by ringing the Managing Director at home at 3 o’clock in the morning.

Martin v Devonshires Solicitors (bailii.org), EAT, 2011
The claimant had made complaints of sex and disability discrimination. She was dismissed. The EAT upheld an employment tribunal decision which rejected her claim of victimisation.

The EAT said the tribunal had (rightly) sought to determine what it was about her conduct, including the making of those complaints, which motivated the employer to dismiss her. The tribunal found that the reason had nothing to do with the fact, as such, that she had made complaints of discrimination, but rather with the facts that those complaints involved false allegations of considerable seriousness, that they were repeated, and that the claimant refused to accept that they were false. The relevance of those facts was, taken together, that they led to the conclusion that she had a mental illness, which was likely to lead to unacceptably disruptive conduct in future. To put it another way, the tribunal found that the reason for the dismissal was that the claimant was mentally ill, and the management problems to which that gave rise. [§19]

The EAT said there would in principle be cases – like this one – where an employer can, as a matter of common sense and common justice, say that the reason for the dismissal (or other detriment) was not the complaint as such but some feature of it which can properly be treated as separable. ‘The most straightforward example is where the reason relied on is the manner of the complaint. Take the case of an employee who makes, in good faith, a complaint of discrimination but couches it in terms of violent racial abuse of the manager alleged to be responsible; or who accompanies a genuine complaint with threats of violence; or who insists on making it by ringing the Managing Director at home at 3 o’clock in the morning. In such cases it is neither artificial nor contrary to the policy of the anti-victimisation provisions for the employer to say “I am taking action against you not because you have complained of discrimination but because of the way in which you did it”.’ [§22]

The EAT accepted that such a line of argument is capable of abuse. ‘Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had, say, used intemperate language or made inaccurate statements. An employer who purports to object to “ordinary” unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately made in some cases does not mean that it is wrong in principle.’ [§22]

That decision in Martin v Devonshires was affirmed by the Court of Appeal in Page v Lord Chancellor (bailii.org), 2021, at §56. The Court of Appeal added at §57:

‘…employment tribunals can be trusted to recognise the circumstances in which the distinction there described can be properly applied, and I do not believe that it is useful to apply a requirement that those circumstances be exceptional…’.

Where a victimisation claim is potentially blocked as discussed in Martin v Devonshires above, an alternative to consider is a claim under s.15 EqA. In particular, if a tribunal may find the reason for the detriment is the ‘objectionable’ manner in which the complaint was made, there could still be a s.15 claim, if the objectionable manner was due to disability such as a mental health condition. See below Additional/alternative claim under s.15 EqA?

Victimisation may be claimed alongside something else

Victimisation can be claimed on its own. However, if one is claiming for some other form of discrimination, it is well worth considering whether there has also been victimisation, and adding that to the claim.

A disabled person complains to their employer that their failure to get a promotion was discriminatory. The person has since been excluded from some work-related activities. When putting in a tribunal claim relating to the promotion, the person should consider adding a claim for victimisation under s.27 EqA, on the basis that they have been subjected to a detriment because they made the complaint.

The victimisation claim might well succeed even if the promotion claim fails – for example because the failure to promote was justified, or the failure was not shown to be disability-related.

Post-employment victimisation is covered

The government’s intention was for the EqA to include victimisation which happens after the employment or other relationship has ended. (An example of a non-employment relationship would be an ex-student claiming against their former university.) In the employment sphere, this result was also required by EU law, namely the Framework Employment Directive. However the wording of the EqA, particularly s.108(7), does not appear to cover victimisation which happens after the relationship has ended.

Following earlier contradictory court decisions, the Court of Appeal in Jessemey v Rowstock, below, clarified that victimisation after the employment or other relationship has ended is covered if it meets the normal conditions in s.108 EqA, mainly that the victimisation ‘arises out of and is closely connected to’ the former employment or other relationship: see Former workers, customers and students.

Example: The EqA should protect a person who is no longer employed if they are given a poor reference because they previously complained about discrimination.

Jessemey v Rowstock (bailii.org), Court of Appeal, 2014
The claimant was dismissed on the ground that he was aged over 65, and brought proceedings for unfair dismissal and age discrimination. He sought the help of an employment agency to find another job. When the agency approached the former employer, it gave the claimant a very poor reference. The employment tribunal found that the reason for the poor reference was that the claimant was pursuing tribunal proceedings. However, the tribunal said that post-employment victimisation was not unlawful under the EqA.

The Court of Appeal disagreed. It held that victimisation after the end of the employment or other relationship was covered by the EqA, despite its wording.

The court said that the drafter intended to include post-termination victimisation in the EqA. It followed that the apparent failure of the EqA to proscribe it was a drafting error. But could the court correct the error? (§§29-37)

The court held yes it could correct the error. Firstly, EU law required post-termination victimisation to be included, so far as the EqA implemented EU law (eg as regards employment). Re-interpreting s.108 to comply with EU law not only went with the grain of the EqA, but also represented what the drafter intended. (§§40-47)

The simplest way to achieve the intended result was to interpret discrimination in s.108(1) as including victimisation. (§§48-49)

Secondly, even apart from EU law, the Court of Appeal said it would reach the same decision – ie it would correct the drafting error – on a domestic (British) law basis. This was based on a House of Lords decision, Inco v First Choice, which held that a court could add, omit, or substitute words if abundantly sure of three matters: (§§50-54)

  1. the intended purpose of the statute or provision in question
  2. that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question, and
  3. the substance of the provision Parliament would have made, although not necessarily the precise words it would have used, had the error in the Bill been noticed. This third point was of crucial importance, to avoid the court crossing the boundary between interpretation and legislation.

All three conditions were fulfilled in this case (§52).

Note: The House of Lords in Inco v First Choice (bailii.org), 2000 added that even if all three conditions are fulfilled, there may sometimes be reasons for a court to hold back from correcting the drafting mistake (penultimate paragraph of Lord Nicholls’ judgment). Presumably this was not argued to be relevant in Jessemey v Rowstock.

There is another example below, of post-employment victimisation.

Jessemey case and non-employment claims

Jessemey v Rowstock itself was an employment claim. However, the view of the Court of Appeal was clearly that the same applies to non-employment claims.

The Equality and Human Rights Commission, by whom the claimant’s barrister was instructed, was anxious if possible that the claimant should succeed on a basis which applied to the EqA as a whole, and thus preclude any future argument that post-termination victimisation remains lawful in the case of provisions which do not have a ‘Euro-underpinning’ (§39). EU law on disability discrimination was limited to roughly employment-related matters.

After considering the EU law position, the Court of Appeal at §§50-54 did indeed go on to find that the claimant would also succeed on a domestic (ie non-EU) law basis.

Furthmore considerations at §§29-37, indicating that the drafter of the EqA intended to include post-termination victimisation, were not limited to employment claims. For example, 2003 legislation confirmed post-termination victimisation to be unlawful as regards all protected relationships (§30).

Post-termination discrimination, harassment and victimisation, including in non-employment claims, is discussed on Former workers, customers and students.

Jessemey case and Brexit

The decision in Jessemey v Rowstock continues despite the abolition of the supremacy of EU law from the start of 2024 (Harvey on Industrial Relations and Employment Law, para L498.01, Issue 325 (June 2025)).

Generally it is unclear whether cases which re-interpreted British law to comply with EU law, under the Marleasing principle, still have effect after the end of 2023, if they were not taken into the EqA by express regulations: Brexit: Effect of EU law when interpreting Equality Act, from 2024>EU law going beyond EqA wording but not preserved by regulations.

However, this should not be a problem with Jessemey v Rowstock, as the Court of Appeal said it would reach the same decision even without EU law.

Victimisation ‘by association’?

Under the wording of s.27 EqA a ‘protected act’ (above) can include an act by the claimant in connection with a discrimination complaint by someone else – for example if the claimant gives evidence to support someone else’s claim. However, on the wording of s.27 there must still be a protected act by the claimant.

Despite this, an employment tribunal (though not a binding precedent) has held that the protected act need not be by the claimant, it can be by someone else. The tribunal said this was required by EU law. But even assuming the tribunal was right, this extended protection may well not apply from 1st January, 2024, when the supremacy of EU law was abolished: Effect of EU law when interpreting Equality Act, from 2024>EU law going beyond EqA wording but not preserved by regulations. The courts will need to decide. However, it may be very difficult to argue for the extended protection after that date, as there is no appeal court authority applying the EU law to victimisation.

This is the employment tribunal case, subject to the big proviso that (even if correct in 2015) it may well not apply after the end of 2023:

Thompson v London Central Bus, Employment Appeal Tribunal (EAT), 2015
The claimant argued that action taken against him by his employer was because of complaints about racism made by other members of his union. An employment tribunal held that victimisation ‘on an associative basis’, ie because of a protected act by someone else, is covered by the EqA. The employer did not appeal this point, so the EAT did not consider it.

What the EAT did hold is that the key issue was not how far there was some association between the claimant and the person who did the protected act, but whether the claimant was subjected to a detriment because of the protected act. Accordingly it was not a question of whether being members of the same union was a close enough link or association.

Different areas of Equality Act

Victimisation can cut across the different areas covered by the EqA such as employment, services, and education (Employment Code para 9.7, 9.15). For example:

Someone who as a student at a university had complained of disability discrimination, would be protected from victimisation if they subsequently applied for a job at the university.

An example of victimisation of a former worker (above Post-employment victimisation is covered):

A grocery shop worker resigns after making a sexual harassment complaint against the owner. Several weeks later, she tries to make a purchase at the shop but is refused service by the owner because of her complaint. This could amount to victimisation.
Para 2.5 of the Sexual harassment and harassment at work: technical guidance (above), 2024

Additional/alternative claim under s.15 EqA?

There have been claims for discrimination arising from disability (s.15 EqA) where the claimant was treated unfavourably because of complaining – in an offensive way – about a lack of reasonable adjustments, or because of behaviour prompted by the lack of reasonable adjustments: Discrimination arising from disability>The disability need not be the only effective cause of the ‘something’. The complaint or behaviour was (in part) because of something arising from the claimant’s disability even though the claimant’s shortness of temper or difficult, prickly nature also played a role. Under s.15, unlike victimisation, the employer has a defence if it shows justification.

A s.15 claim may be particularly helpful as a backup if an employer or service provider etc argues that victimisation does not apply under Martin v Devonshires Solicitors (above), because of the manner in which the claimant made the complaint. That is particularly so if the complaint was, or came over as, unduly aggressive etc because of the claimant’s disability, or if the objectionable way in which the complaint was made was otherwise due to their disability. Here there could be two causal links with the disability for the purpose of s.15. As well as the fact that the subject matter of the complaint arises from the disability, the manner in which the complaint was made (which the employer gives as the reason for the detriment) would also arise from the disability. The employer would have a defence if it shows justification (mainly that its action was proportionate).

Whistleblowing claim?

Where a worker (or similar) alleges a breach of the EqA, and is subjected to detriment as a result, there may also sometimes be a breach of whistleblowing legislation, if – among other requirments – the worker reasonably believed the disclosure of information to be in the public interest. I don’t go into this here, but there is a broad outline at Whistleblowing for employees (gov.uk).

Like EqA claims, there is no statutory limit on compensation in whistleblowing claims.

Links

Technical note: More detail on ‘protected acts’

‘Protected act’: Giving evidence or information in connection with EqA proceedings, s.27(1)(b)

It may be that s.27(1)(b) does not apply if proceedings have not yet begun. In Kirby v Manpower Services Commission below, 1980, the court held that the then equivalent to s.27(1)(b) did not to apply as the relevant act of the claimant – giving information to the Community Relations Council – was three months before proceedings began.

However, the current wording is arguably wider than that considered in Kirby. More importantly, even if s.27(1)(b) EqA does not apply as proceedings had not yet begun, giving the evidence or information may well fall within para (c), as was so in Kirby itself (link above).

See below for an exception where false evidence or information given in bad faith: Bad faith.

‘Protected act’: Other acts ‘for the purposes of or in connection with’ the EqA, s.27(1)(c)

Under s.27(2)(c), ‘doing any other thing for the purposes of or in connection with’ the EqA is a protected act.

This sweep-up provision has a wide meaning. It had a wide meaning even under narrower pre-2010 wording, which required the act to be done ‘under or by reference to’ the anti-discrimination legislation, ‘in relation to’ the discriminator or any other person:

Kirby v Manpower Services Commission, EAT, [1980] ICR 420
The EAT held that a report by the claimant to a local Community Relations Council was an act done ‘by reference to’ the Race Relations Act 1976, because the purpose of his report was to inform the Council that facts were available which ought to be investigated and which indicated ‘a possible breach of the provisions of the Race Relations Act 1976’. He did the act in relation to the person being discriminated against. So the report was covered by the victimisation provisions.

The claimant had been a clerk at a job centre. He reported to the Community Relations Council that, among other things, one prospective employer had refused to interview a black man, and another had asked whether an applicant was black. When the claimant’s employer heard that the claimant had reported this, it moved him to a job as a filing clerk.

Taken from the discussion of this case in Aziz below, and in F v NHS England ET decision (pdf, gov.uk).

Aziz v Trinity Street Taxis (bailii.org), Court of Appeal, [1988] EWCA Civ 12
The Court of Appeal upheld a tribunal decision that making secret recordings with a view to assisting a possible complaint of race discrimination was something that could properly be said to be done ‘by reference to’ the Race Relations Act 1976. It was sufficient that this was done by reference to the legislation ‘in the broad sense, even though the doer does not focus his mind specifically on any provision of the Act’.

Trinity Street Taxis (TST) was one of a number of groups into which Coventry taxi drivers had organised themselves. It operated a radio system for members. The claimant, who was of Asian origin, considered that he was being unfaily treated, through being charged a fee of £1,000 to admit a third taxi of his to the TST system. He secretly recorded conversations that he had with members apparently sympathetic to his view, as he was concerned they might say something else to the committee of TST.

The Court of Appeal considered that the following facts found by the tribunal were enough to entitle the tribunal to find that in making tapes, the claimant had done an act ‘by reference to’ the Act in relation to TST: that at the time he made the recordings (i) he considered that he was being unfairly treated by TST by reason of the imposition of the £1,000 fee; (ii) the possibility was beginning to form in his mind that this might amount to a form of racial discrimination and that correspondingly some form of legal redress might be available to him; and (iii) he considered it possible that the secretly taken tape recordings might assist him if and when he chose to pursue that redress.

The wording in s.27(2)(c) EqA – ‘for the purposes of or in connection with’ the EqA – should be at least as wide as, and may well be wider than, the older wording considered in those two cases. The acts considered in those cases would almost certainly now be ‘in connection with’ the EqA. They might arguably also be ‘for the purposes’ of it.

An example of a 2021 employment tribunal decision applying s.27(2)(c) EqA is Bayfield v Wunderman Thompson (UK), 2200540/2019: Dismissal of senior male employees following publication of high gender pay gap figures was sex discrimination (bdbf.co.uk). This is not a binding precedent as it is not an appeal decision.

‘Protected act’: Allegation within s.27(1)(d)

Under s.27(2)(d), making an allegation (express or not) that either the alleged victimiser or another person has contravened the EqA is a protected act.

Facts capable of being breach of EqA

For an allegation to come within s.27(1)(d), the facts alleged must be capable in law of being a breach of the EqA. The Court of Appeal has stated:

‘The allegation relied on need not state explicitly that an act of discrimination has occurred… All that is required is that the allegation relied on should have asserted facts capable of amounting in law to an act of discrimination by an employer.’

Waters v Commissioner of Police for the Metropolis [1997] ICR 1073, Court of Appeal; cited in Fullah v Medical Research Council (bailii.org), EAT, 2013, at para 21-22.
The Waters case is discussed more fully in Victimisation and Protected Acts: The need for information (pdf, stjohnsbuildings.com), Tom Wood, St Johns Buildings, 2019.

In Waters itself (pdf link above), the claimant alleged that she was raped by a fellow police officer when they were both off duty, in circumstances where it could not have been ‘in the course of employment’. This meant that as a matter of law, the facts she alleged could not be a breach of the Sex Discrimination Act 1975 (the case was pre-EqA). So her allegation was not a protected act within what is now s.27 EqA. (Waters was appealed to the House of Lords (bailii.org) [2000] UKHL 50 on a different issue.)

This may seem harsh, as a claimant often doesn’t know what legally falls within the EqA. But even if the alleged facts could not be a breach of the EqA, the claimant may be able to argue that the allegation was a protected act within s.27(1)(c), above, namely ‘doing any other thing for the purposes of or in connection with’ the EqA.

Deciding whether there is an allegation of breach of the EqA, s.27(1)(d)

It may be unclear whether the claimant’s words amount to an allegation (within Waters above). For example:

  • the claimant might have said it ‘may be discriminatory’ (eg Chalmers below, where the EAT said the tribunal could have interpreted this as an affirmation that she had been discriminated against)
  • the claimant might not have expressly said the treatment was related to disability, sex or race etc (eg Chalmers, Kokomane below)
  • the claimant might have talked about bullying for example, rather than discrimination (eg Kokomane below).

Whether it is considered an allegation of breach of the EqA will depend on the facts and evidence in the particular case (eg see the discussion in Chalmers below). The courts have said that the tribunal needs to consider how the information given by the claimant to the employer would be understood by the employer in context, including the general facts about the employee and the place of work, which the employer would know of it any event (eg Kokomane below).

Chalmers v Airpoint (bailii.org), EAT, 2020
The claimant and the only other woman in her office were unable to attend a Christmas night out. She put in a grievance saying that her line manager’s manner was aggressive and unhelpful, and her work mostly ignored. The grievance said that she had been excluded from a Christmas night out, which was not acceptable to her and ‘may be discriminatory’. Was this an allegation of sex discrimination, so as to be a protected act within s.27(2)(d)? The EAT upheld the employment tribunal decision that it was not.

The claimant argued that while she believed she had been discriminated against, she had chosen not to affirm this positively as it was for the employment tribunal (ET) to decide. The EAT commented that this was perhaps not the most obvious explanation, given that other parts of her grievance email were forthright [§14].

The EAT accepted that the ET was not obliged to interpret her words literally, and could have held that ‘may be discriminatory’ was an affirmation that the claimant had been discriminated against on the ground of sex. Some people do express themselves cautiously, and an ET might have inferred that the words were a disclosure of the claimant’s belief that she had been discriminated against, and that this was therefore a protected act. The EAT said a great deal would depend on the context and the ET’s assessment of the evidence, including of whether the claimant struck the ET as a person who was likely to have expressed herself cautiously [§15].

The EAT explained that the ET was the finder of fact, and the EAT’s role was only to decide whether there was evidence capable of supporting the ET’s conclusion. Here there was. The word ‘may’ might usually be thought to signify doubt or uncertainty [§16]. The absence of a reference to ‘sex’ discrimination was also a factor supporting the tribunal’s conclusion. The ET had thought that the claimant’s background in HR qualified her to take an informed view as to whether her non-invitation was an act of discrimination on the ground of sex, so her failure to assert sex discrimination in the email undermined her submission that the email was an explicit allegation of sex discrimination [§17]. Further the claimant was articulate and well educated [§18]. Also the ET referred to the claimant’s complaint about the line manager’s behaviour towards her, raising the possibility that the discriminatory behaviour may have been based on grounds other than the protected characteristic [§19].

See also Fullah v Medical Research Council (bailii.org), EAT, 2013, and the Durrani case discussed in it, both referred to in the Chalmers case above. Fullah (para 25) might be taken to indicate that it needs to be apparent from the allegation or circumstances what the protected characteristic is, eg disability.

In Durrani (bailii.org), EAT, 2013, a claimant of Pakistani origin alleged ‘discrimination’. However, the context was that he meant detrimental action which was simply unfair, rather than due to his race, so it was not a protected act.

Kokomane v Boots Management Services (bailii.org) [2025] EAT 38
After reviewing the case law, the EAT said: ‘… It appears to me the law could be summed up in this way: what is necessary is that the ET should take account of all the factors that are provided in the information given by the employee to the employer. In addition the ET needs to consider that information on the basis of how it would be understood by the employer in context. It would be understood by the employer, in part, because of the general facts about the employee and the place of work, which the employer would know of it any event. … When the employee makes the complaint explicit that will be an easy task. When the complaint is oblique, the context becomes important.’ [§24]

In this case, the claimant argued that two grievances by her and the grievance investigation were protected acts within s.27(1)(d), as allegations of breach of the EqA. In one of her grievance letters said she suffered bullying, harassment and victimisation by the main pharmacist in the store where she worked. It did not mention race or discrimination. The employment tribunal (ET) held there was no protected act.

The EAT overturned the ET decision, and sent it back for reconsideration. The ET had not sufficiently considered the broad context. This included: that the claimant was the only black employee; she pointed out in a grievance letter that she was being treated differently from the rest of the staff; she was accused of shouting (relied upon as part of a grievance); that the grievance meeting notes at a very minimum raised as an issue that shouting may be connected to black women in a negative way, and this issue was reinforced in her internal appeal against the grievance outcome. [§30]

M v Joseph Heler (2026), a case on stammering, is an example of an employment tribunal taking the context into account, as set out in Kokomane, to decide that an email was an allegation within s.27(2)(d). However, the victimisation claim failed because any detriment was not because of the email.

If there is doubt whether something is an allegation of an EqA breach within s.27(2)(d), it may be worth arguing in the alternative (ie as a backup) that it is ‘doing any other thing for the purposes of or in connection with’ the EqA within s.27(2)(c) above. However, this again will presumably depend on the facts and evidence. S.27(2)(c) would probably not have helped in Durrani, for example, where the act was held to be a complaint that conduct was unfair rather than due to race.

For an exception if a false allegation is made in bad faith, see Bad faith.

Bad faith

S.27(3) EqA says that giving false evidence or information, or making a false allegation, is not a protected act if it is given or made in bad faith. Then the victimisation provision does not apply.

For some other circumstances, apart from s.27(3), where victimisation protection may not apply, see above ‘Because’: Any exception for circumstances surrounding the complaint?

S.27(3) has two limbs (GMB Union v Fenton (bailii.org), EAT, 2004). The employer or service provider etc who wants to take advantage of s.27(3) needs to show – on a balance of probabilities – that the allegation, evidence or information:

  1. was false, and
  2. was made in bad faith.

As to whether the false allegation or evidence etc was made or given in bad faith, the primary question is whether it was made honestly, even if there was an ulterior motive:

Saad v Southampton University Hospitals University NHS Trust (bailii.org), EAT, 2014
The claimant was a doctor training to be a cardiothoracic consultant. Facing the likelihood that he would fail an assessment, he raised a grievance regarding a (race) discriminatory remark that he alleged was made four years previously, when he was not present. The Trust subsequently decided that he could not return to work in its Cardiothoracic Unit. The employment tribunal (ET, at §26) said the burden of proof had shifted to the Trust, which had failed to show that the claimant’s grievance did not have a significant influence on its decision that he could not return.

The ET rejected his victimisation claim. It said his allegation was made in bad faith because he had an ulterior motive, namely to postpone the assessment which he knew would go badly for him. The ET accepted that he believed the allegation to be true, albeit without reasonable grounds for believing it.

The EAT overturned the ET decision. In deciding whether a claimant acted in bad faith, the primary question was whether they acted honestly in making the allegation, or in giving the evidence or information – ie whether they had an honest belief in what they said. The issue was not their purpose but their belief. At this stage the ET had already decided that the allegation etc was false. The more obviously false the allegation, the more an ET might be inclined to find that it was made without honest belief. The EAT did not rule out that a claimant’s motivation for making an allegation might be relevant in determining bad faith. It gave examples where the motivation might indicate that the claimant had no personal belief that the allegation etc was true. However, there were good policy reasons for exercising caution in taking a collateral motive into account. [§48-51]

Given the ET’s findings, the EAT upheld the claimant’s victimisation claim. The ET had found that the claimant subjectively believed the allegation to be true. Therefore the ET had found he was making the allegation honestly. The EAT was satisfied that whilst his ulterior purpose might be relevant to any question of remedy, it would not be sufficient for a finding of bad faith. [§52-53]

That Saad case undoubtedly forms the basis of para 2.15 of the 2024 Sexual harassment and harassment at work: technical guidance (above), including the example of a worker making an honest allegation primarily in order to disrupt proceedings for poor performance.

2.15 If a worker has an ulterior motive for providing the evidence or information, or making the allegation, this does not necessarily mean that the worker does not honestly believe it is true. An ulterior motive will not of itself mean the worker acted in bad faith. However, it may be a relevant piece of information for a tribunal or court to consider in deciding whether the worker acted honestly. Other factors such as the length of time it took the worker to raise the matter may also be relevant. ….
2024 Sexual harassment and harassment at work: technical guidance (above)

As well as paragraphs 2.12 to 2.15 of that 2024 harassment guidance, s.27(3) is discussed with examples in para 9.12-9.13 of the 2014 Technical guidance on further and higher education.

Technical note: Steps within litigation

Employers and service providers etc need to be able to take steps to conduct discrimination litigation, and to protect their interests in relation to it, even though the claimant may not like what they do – without it being victimisation under s.27 EqA.

The House of Lords in Derbyshire (below) said that the general test on what is a ‘detriment’ (above Detriment) applies here too – ie whether a reasonable worker would or might take the view that what the employer etc did was in all the circumstances to the worker’s detriment. However, the House of Lords saw that test as allowing the employer to take ‘honest and reasonable’ action in the conduct of a discrimination claim, including in settlement negotiations.

In St Helens Borough Council v. Derbyshire (bailii.org) [2007] UKHL 16, the employer had sent a letter warning of dire consequences if women persisting with an equal pay claim refused to settle it. Citing Khan (below), the House of Lords upheld an employment tribunal decision that the letter was unlawful victimisation. The tribunal did not regard the letter as a reasonable means of the council protecting its interests in the litigation. However, Lord Neuberger, giving the main judgment in the House of Lords, said it was hard to imagine circumstances where an ‘honest and reasonable’ action (unlike that in the present case) by an employer in the context or conduct [sic] of an equal pay claim could lead to ‘detriment’, as that term was explained in Shamoon (discussed in Warburton above). Lord Neuberger said at para 58:

An alleged victim cannot establish ‘detriment’ merely by showing that she had suffered mental distress: before she could succeed, it would have to be objectively reasonable in all the circumstances. The bringing of an equal pay claim, however strong the claim may be, carries with it, like any other litigation inevitable distress and worry. Distress and worry which may be induced by the employer’s honest and reasonable conduct in the course of his defence or in the conduct of any settlement negotiations, cannot (save, possibly, in the most unusual circumstances) constitute ‘detriment’ for the purposes of [the victimisation provisions of the Sex Discrimination Act 1975].

A court considering a victimisation claim where the alleged detriment is steps in the conduct of EqA litigation may well ask itself whether the conduct was (most importantly) ‘reasonable’ – given the steer by the House of Lords that if so it will hardly ever be a ‘detriment’.

As to what ‘reasonable’ means, one statement which for me stands out is by Lord Hope at para 27 of Derbyshire. He said that the employer ‘must avoid doing anything that might make a reasonable employee feel that she is being unduly pressurised to concede her claim’. He derived this from an EU case which, he said, implies that while the employer is entitled to take steps to protect its own interests, it must not seriously jeopardise the employee’s right to pursue her claim (para 26). Regardless of EU case law (particularly post-Brexit), this focus on whether a reasonable claimant might feel unduly pressured not to assert their rights seems to me consistent with the purpose of EqA protection against victimisation.

A more recent case which cited the Derbyshire and Khan decisions, though with very little discussion of them, is:

Carozzi v University of Hertfordshire (bailii.org) [2024] EAT 169
The employer refused to disclose to the claimant notes of a meeting with the claimant, as the notes might provide her with ‘ammunition’. This was even though the notes would have to be disclosed in employment tribunal proceedings. The employment tribunal decided this was not a detriment. The EAT said the tribunal had wrongly failed to consider whether the parties thought there were likely to be employment tribunal proceedings, and whether an employee who brings a grievance that might resolve issues with an employer, without the need for tribunal proceedings, might reasonably consider themselves disadvantaged by not being provided with the notes of a meeting [§37].

Note on the 2001 Khan decision

The House of Lords in St Helens BC v Derbyshire, and to some extent the EAT in Carozzi, were considering the previous House of Lords decision in Chief Constable of West Yorkshire Police v Khan (bailii.org) [2001] UKHL 48, discussed at Cop out from ‘but for’ test in victimsation case (thompsonstradeunion.law), 2002. Various Law Lords in Khan each gave their own judgment, but very broadly the court held that (a) employers acting honestly and reasonably ought to be able to take steps to preserve their position in discrimination proceedings, and (b) this was because the claimant’s having brought proceedings was not the reason for the detriment. (perhaps similar to Martin v Devonshires Solicitors, above).

In St Helens BC v Derbyshire the main judgment at least, by Lord Neuberger, said the reason why honest and reasonable conduct was allowed was that it was not normally a ‘detriment’, rather than anything to do with whether the claimant’s bringing proceedings was the reason for the alleged detriment. However eg Lord Hope’s judgment (quoted above), although agreeing with Lord Neuberger’s reasoning, itself focused on the ‘reason’ for the conduct.

There may be further clarification in future cases.

Technical note: Is knowledge of a specific protected act required?

The EAT decision in Peninsula v Baker may limit victimisation claims by requiring the decision-maker to know of the specific communiction(s) from the claimant. However I think the decision is wrong on this point:

Peninsula Business Service v Baker (bailii.org), Employment Appeal Tribunal (EAT), 2017
The claimant’s job was to provide legal advice and representation in tribunal hearings. He told the employer that he had dyslexia and wanted reasonable adjustments. He did this in two emails and a conversation with his advocacy manager and allocations manager.

A different manager, the director of legal services, gave instructions for the claimant to be put under covert surveillance. The employment tribunal decided that she knew by then of the claimant’s alleged dyslexia and about the impact he said it had on his work. The tribunal held that the surveillance was unlawful victimisation because of his asking for adjustments.

On appeal, the EAT overturned the tribunal’s decision for various reasons. One reason was that the tribunal failed to apply the right ‘because of’ test. For example, the EAT said the tribunal’s decision suggested strongly that it found the director’s reason for putting him under surveillance was her suspicion that the claimant was not dyslexic, or not very dyslexic, rather than a protected act.

However the argument I want to discuss here is another one. The employer argued to the EAT that the tribunal did not find that the reason for the surveillance was the three specific protected acts (the emails and conversation) relied on by the claimant, nor that the director of legal services knew of those specific acts. In response, the claimant argued that the protected act was the assertion by the claimant that he was disabled and his request for reasonable adjustments, and it was enough that (according to the tribunal) the director of legal services knew of that and it was the reason for victimisation.

The EAT agreed with the employer. So the EAT said for this reason too there was no victimisation. The EAT said an employee must identify a specific actual protected act, or believed protected act, in order to fix the employer with liability. The employee must show that the employer knew about that specific act, and that the employer imposed a detriment on the employee because of that specific protected act. The tribunal here did not specifically find that the director of legal services knew about the two emails and the conversation, or that those acts were the reason why she ordered the surveillance.

There were also other points at issue in the case, one of which is discussed under Perceived disability>Past cases pointing to difficulties in showing perceived disability.

I think this decision is wrong in so far as it requires the decision-maker to know about the specific communication. It would be ridiculous if a worker is not protected if his manager tells the chief executive that the worker is asking for reasonable adjustments for a disability (without details of particular communications) and the chief executive says ‘Just sack him’, or himself sacks the employee. This cannot be what Parliament intended. (Also if still relevant after Brexit, the EAT decision is likely to be incompatible with Article 11 of the EU Framework Employment Directive.)

Also on the wording of the EqA, and other case law, the Peninsula decision seems to me to be wrong on this point. The EAT was presumably influenced by the decisions in CLFIS and Gallop, indicating that the employment tribunal must look at the mental state of the individual decision-maker, and accordingly an action by that decision-maker cannot be direct disability discrimination ‘because of’ the disability (s.13 EqA) if the decision-maker did not know of the disability: see Direct discrimination>Mental process of decision-maker, rather than other staff. This makes some sense. If the decision-maker’s decision was motivated by some innocent non-disability reason, such as general poor performance, it was not ‘because of’ disability, and so not direct disability discrimination. (But if another manager with a discriminatory motivation had reported to the decision-maker that the worker was performing poorly, that report is likely to be unlawful discrimination.)

How should this apply to victimisation under s.27, where the EqA also uses the phrase ‘because of’? The courts have said one needs to look at the decision-maker’s mental state, but knowledge is not a specific statutory requirement here. In this Peninsula case, assuming the reason for the surveillance in the mind of the director was that the worker had made a claim for reasonable adjustments, would the director’s action have been ‘because’ of those two emails and the conversation (or any of them)? Surely yes it would. Her mental state would have a close enough causal link with those protected acts, even though she did not know the precise communications. It is quite different from a decision-maker being given a non-disability-related reason, like in CLFIS and Gallop.

Note that the claimant does not seem to have put this argument to the EAT. The claimant argued unsuccessfully that the protected act was the assertion by the claimant that he was disabled and his request for reasonable adjustments. He argued that the specific communications were the medium, but the protected acts were the information which the claimant conveyed to the employer. That is a further possible argument, which may succeed in future. In any event, I would suggest that there is sufficient causal link with the decision-maker’s mental state even if the protected acts are the specific communications.

A further possible argument by the claimant would be that the director believed the claimant had done a protected act within s.27(1)(b), without requiring precise specificity as to how it was communicated. As regards belief, it may be more difficult for an employer to argue that s.27 requires its belief to be in, say, a particular email sent at such and such a time. Also the absurdity (as I see it) of requiring a belief to be that specific bolsters the argument that the detriment can be because of the actual complaint without requiring knowledge of the precise communications.

I suggest this decision will be reversed at some point, if argued in future. Perhaps employment tribunals may consider themselves bound by it in the meantime; however it might be argued tribunals need not be bound by it as the victimisation claim failed on other grounds anyway. Also there were arguments not considered by the EAT, as discussed above.

25th anniversary of stammeringlaw, 1999-2024