Victimisation under s.27 EqA is where a person is ‘punished ‘because they were involved in a previous discrimination claim. The Equality Act makes it unlawful. (Being ‘victimised’ because of a disability is different. That may be harassment, for example.)
‘Victimisation’ can arise if (broadly) an individual has previously been involved in making a claim under the Equality Act or the DDA, or has alleged a breach of it. The Equality Act makes it unlawful to subject the individual to detriment because of this.
A person brings a grievance for disability-related harassment. As a result she is subsequently turned down for promotion. This would be unlawful as victimisation.
A customer complains about staff at his local supermarket making fun of his stammer. The customer subsequently finds that staff there are rude to him, or try not to serve him. This is likely to be unlawful as victimisation.
The person does not need to have brought proceedings themselves:
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.
The complaint need not have been against the person doing the victimising:
An 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 longer probationary period. This is likely to be unlawful as victimisation.
Bouabdillah v Commerzbank AG (link to practicallaw.com)  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.
On the facts, the tribunal rejected the employer’s arguments that the dismissal was for other reasons, such as that the employee had misled it. It may be disputed in a future case whether it should matter if an employee concealed proceedings against a former employer.
Technically, victimisation is subjecting someone to a ‘detriment’ because of a ‘protected act’:
- The defintion of ‘protected act’ is in s.27(3) EqA. This definition is extended to include acts under the DDA, by article 8 of SI 2010/2317.
- Generally, a ‘detriment’ is anything which the claimant might reasonably consider changed their position for the worse or put them at a disadvantage: see Employment Code para 9.8-9.9.
Giving false evidence or information, or making a false allegation, is not a protected by the victimisation provisions if the evidence or information is given, or the allegation is made, in bad faith (s.27(3) EqA). However, where allegations are not in bad faith, it has been held that even a ‘serial complainer’ can claim victimisation:
Woodhouse v West North West Homes Leeds (link to bailii.org) 2013, Employment Appeal Tribunal (EAT)
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.
Case summary: didlaw blog.
There may be rare cases in which the employer etc may establish its action is due to surrounding circumstances sufficiently separate from the discrimination complaint itself: Martin v Devonshires Solicitors (link to bailii.org), 2011, discussed in the Woodhouse case above.
Victimisation can cut across the different areas covered by the Equality Act such as employment, services and education (Employment Code para 9.7, 9.15).
Someone who as a student at a university had complained of disability discrimination would be protected from victimisation if she subsequently applied for a job with the university.
- Legislation: s.27 EqA (link to legislation.gov.uk)
- Codes of Practice: Employment Code, Chapter 9; Services Code, Chapter 9.
May be claimed alongside something else
Victimisation can be claimed on it own. However, if a claim is being made for some other form of discrimination, it is worth considering whether there has also been victimisation which can be included in the claim..
A disabled person complained to his employer that his failure to get a promotion was discriminatory. He has since been excluded from some work-related activities. When putting in a tribunal claim relating to the promotion, he could consider adding a claim for victimsation, on the basis that he has been subjected to a detriment because he made the complaint.
Is post-employment victimisation covered? Yes.
The Government’s intention was for Equality Act 2010 to include victimisation which happens after employment has ended. Also this is required by the European law, namely the Framework Employment Directive. However, from the wording of the Equality Act (particularly s.108(7) EqA) one would think it does not cover post-employment victimisation.
Following contradictory court decisions, the Court of Appeal has now clarified that post-employment victimsation is covered by Equality Act 2010. So for example, the Act protects a person who is no longer employed and is given a bad reference because they previously complained about discrimination
Jessemey v Rowstock (link to bailii.org) February 2014, Court of Appeal
The claimant was dismissed on the ground that he was aged over 65. He brought proceedings for unfair dismissal and age discrimination. He sought the help of an employment agency to find another job. When they approached the former employer, it gave the claimant the claimant a very poor reference. The employment tribunal found the reason for the bad reference was that the claimant was pursuing tribunal proceedings”. However, said the tribunal, it was “post-employment victimisation” and so not unlawful under the Equality Act 2010. The Court of Appeal held that post-employment victimisation is covered by the Equality Act. The intention was to include it, and the court could correct the drafting error. The claim therefore succeeded.
See Former employees on s.108 more generally, including discrimination and harassment after termination of employment.
- Don’t be a victim of victimisation (link to personneltoday.com) – December 2012, aimed at employers. Gives a useful overview of different ways in which victimisation can arise in practice.