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.)
‘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.
Under the definition of “protected act” (below) the person does not need to have made a claim 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.
It is even possible that a person may be covered 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 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 (bdbf.co.uk)  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 Disability Discrimination Act 1995, 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 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 claim victimisation:
Woodhouse v West North West Homes Leeds (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.
There may be rare cases in which the employer etc may establish that its action is due to surrounding circumstances sufficiently separate from the discrimination complaint itself: Martin v Devonshires Solicitors (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 (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 (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.
Victimisation ‘by association’?
Under the wording of s.27 EqA a ‘protected act’ can 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, 2015
The claimant argued that action taken against him by the employer was because of complaints about racism made by other members 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 matter of whether being members of the same union is a close enough link or association.
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 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 it 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, 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 the 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 means of communication.
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.
- Don’t be a victim of victimisation (personneltoday.com) – December 2012, aimed at employers. Gives a useful overview of different ways in which victimisation can arise in practice.