Victimisation

Victimisation under s.27 EqA is where an employer or service provider etc ‘punishes’ a person because of making or being involved in a discrimination claim. The Equality Act makes this unlawful. (Being ‘victimised’ because of a disability is different. That may be harassment, for example.)

Summary

‘Victimisation’ can arise if (broadly) an individual has made, or is or was involved in making, a claim under the Equality Act or the DDA, or has alleged a breach of the legislation. The Equality Act makes it unlawful to subject the individual to a 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.

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, or perhaps even an act by someone else.
• What is a “detriment”? This is wide. The basic question is whether the treatment is of such a kind that a reasonable worker would or might take the view that it was to his 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. The victimisation claim may succeed even if the main discrimination claim does not. Below Victimisation may be claimed alongside something else.

The legislation is s.27 EqA (legislation.gov.uk). Codes of Practice: Employment Code, Chapter 9; Services Code, Chapter 9. Also Chapter 9 of the 2014 Technical guidance on further and higher education.

What is a “protected act”?

The full definition of “protected act” is in s.27(2) EqA. There are examples in the Summary above.

Under the definition of “protected act”, the person who suffers the detriment need not have made an EqA complaint themself:

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.

There the claimant has done something in connection with someone else’s claim, but it is possible that a person may be covered even if the person has not done any protected act themself, but was victimised because of someone else’s protected act: see below Victimisation ‘by association’.

The EqA complaint need not be against the person doing the victimising:

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 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: 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. See further below “Because”: Any exception for circumstances surrounding the complaint?

The EqA definition of “protected act” includes acts under the Disability Discrimination Act 1995, by virtue of article 8 of SI 2010/2317.

“Protected act”: How clear need the allegation be?

One type of “protected act” is an allegation that someone has contravened the EqA (s.27(2)(d)). One case considered a grievance which said the employer’s action “may be discriminatory”, and did not specify which protected characteristic. The EAT held the tribunal was entitled to find that the grievance was not a protected act:

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 her line manager’s manner was aggressive and unhelpful, and her work mostly ignored. She said in the grievance that she had been excluded from a Christmas night out, which was not acceptable to her and “may be discriminatory”. Was this was an allegation of sex discrimination so as to be a protected act within s.27(2)(d), namely “making an allegation (whether or not express) that A or another person has contravened this Act”? The EAT upheld the tribunal decision that it was not a protected act.

The claimant argued that while she believed she had been discriminated against, she had chosen not to affirm this positively as it was a matter for the tribunal 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 tribunal 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 on the ground of sex. Some people do express themselves cautiously, and a tribunal 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 tribunal’s assessment of the evidence, including of whether the claimant struck it as a person who was likely to have expressed herself cautiously [§15].

The EAT explained that the employment tribunal was the finder of fact, and the EAT’s role was only to decide whether there was evidence capable of supporting the tribunal’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 tribunal 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 tribunal 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), 2013, and the Durrani case discussed there, both referred to in the Chalmers case. 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 a claimant of Pakistani origin alleged “discrimination” but 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.

“Detriment”

According to the Employment Code para 9.8-9.9, 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 gives some examples. It says an unjustified sense of grievance alone would not be enough to establish detriment.

That is pretty much consistent with current 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 it putting its vetting process on hold. The claimant argued this delay was at least partly due to ongoing employment tribunal proceedings he had against his former employer alleging unlawful discrimination. In holding that the 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 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 for this question to be answered in the affirmative. The reasonable worker test meant that an unjustified sense of grievance would not pass the test. However it was enough that such a 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, but 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 discusses the meaning of “because” (below).

“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) the test is whether the protected act “had a significant influence on the outcome”. This normally required an examination of “the mental processes” of the alleged discriminator.

For more on this, see the similar test for direct discrimination. However the Warburton case points out at §30 (subject to §69) that victimisation is different in that it requires no comparator. From what the EAT says, it follows that (in its view) the protected act need not be the only or main cause of the detriment, again similar to direct discrimination.

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

“Because”: Any exception for circumstances surrounding the complaint?

S.27 itself says that giving false evidence or information, or making a false allegation, is not protected by the victimisation provisions if the evidence or information is given, or the allegation is made, in bad faith (s.27(3) EqA). This is discussed with examples in para 9.12-9.13 of the 2014 Technical guidance on further and higher education.

However, 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:

Martin v Devonshires Solicitors (bailii.org), EAT, 2011
The claimant had made complaints of sex and disability discrimination. She was dismissed. The EAT upheld a 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 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]

This decision 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. This is particularly so if the “objectionable” way in which the complaint was made was due to the disability. See below Additional/alternative claim under s.15 EqA?

Victimisation may be claimed alongside something else

Victimisation can be claimed on its own. However, 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 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 should consider adding a claim for victimsation, on the basis that he has been subjected to a detriment because he made the complaint.

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), the victimisation claim might well succeed

Post-employment victimisation is covered

The government’s intention was for the Equality Act 2010 to include victimisation which happens after employment has ended. Also this was required by European Union 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 victimisation is covered by the 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 (bailii.org), Court of Appeal, 2014
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 the agency approached the former employer, it gave 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. 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 EqA more generally, including discrimination and harassment after termination of employment.

Victimisation “by association”?

Under the wording of s.27 EqA a “protected act” includes acts of the claimant in connection with a discrimination claim by someone else, for example if the claimant gives evidence to support a claim by someone else. However on the wording of s.27 there must be some protected act by the claimant. Even so, 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. It said this is required by EU law.

Thompson v London Central Bus, Employment Appeal Tribunal (EAT), 2015
The claimant argued that action taken against him by the 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 somone else, is covered by the Equality Act. The employer did not appeal this point, so the EAT did not consider it.

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

Different areas of Equality Act

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). For example:

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.

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, for example that the tribunal failed to apply the right “because of” test. Eg 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 a further one raised by the employer: 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. The claimant argued in response 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 that 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, and 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 an employee is not protected if his manager tells the chief executive that the employee 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 may well be incompatible with Article 11 of the EU Framework Employment Directive.)

Also on the plain wording of the Equality Act, the decision seems to me to be wrong on this point. The EAT was presumably influenced by decisions in CLFIS and Gallop indicating that the employment tribunal must look at the mental state of the individual decision-maker, and accordingly there cannot be direct disability discrimination “because of” the disability if the decision-maker did not know of the disability: see Direct discrimination>Mental process of decision-maker, rather than other staff. That makes some sense as to whether a decision was because of a disability. However knowledge is not a statutory requirement here; the statute just asks whether one thing is “because” of the other. In this victimisation case, assuming the surveillance had been because of the 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. There would be a close enough causal link with those protected acts even though she did not know the precise communications.

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 possible argument, but I would suggest that there is sufficient causal link even if the protected acts are the specific communications.

A further possible argument 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 (the EAT here required specificity but the statute does not say that).

I suggest this decision will be reversed at some point. 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.

Additional/alternative claim under s.15 EqA?

There have been claims under s.15 EqA, discrimination arising from disability, 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 their lack: 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 disability even though the claimant’s shortness of temper or difficult, prickly nature also played a role. Under s.15, unlike victimisation, the employer would have 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 subject matter of the complaint arising 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), but that may well be more difficult given the double link with disability.

Links

• Don’t be a victim of victimisation (personneltoday.com) – 2012, aimed at employers but gives a useful overview of different ways in which victimisation can arise in practice.