Victimisation – What constitutes a protected act?

A recent Employment Appeal Tribunal judgment in Kokomane -v- Boots Management Services Ltd has ruled that an Employment Tribunal erred by taking too narrow an approach when analysing whether an employee who raised a grievance had done a protected act for the purposes of bringing a victimisation claim. Just because she had not expressly mentioned discrimination in her grievance, did not necessarily mean she had not done a protected act.

Section 27 of the Equality Act 2010 (“EqA 2010”) permits individuals to bring a claim for victimisation where they are subjected to a detriment because they have done (or are believed to have done, or it is believed they may do) a “protected act”. For the purposes of the legislation, the EqA 2010 defines the following as protected acts:

• bringing proceedings under the EqA 2010;
• giving evidence or information in connection with proceedings under the EqA 2010;
• doing any other thing for the purposes of or in connection with the EqA 2010; or
• making an allegation (whether or not express) that someone has contravened the EqA 2010.

Kokomane was concerned with the last of these, and the Employment Tribunal was tasked with determining whether the contents of a grievance letter, and subsequent comments made in a grievance investigation hearing, were capable of meeting the threshold for a protected act.

Ms Kokomane, the only non-white member of staff employed full-time at her working location, raised a grievance alleging acts of bullying, harassment and victimisation, as well as being treated differently to her colleagues. When discussing her experiences in a subsequent grievance hearing, she stated that she had been accused of “shouting”, which she described as relating to a stereotype that black women are loud. Two months after this hearing, she was dismissed for redundancy and brought a victimisation claim.

Employment Tribunal finds no victimisation

The Tribunal found that Ms Kokomane’s victimisation claim failed. This was because the contents of the grievance letter, and comments she subsequently made, did not expressly allege discrimination in contravention of the EqA 2010. She was found not to have specifically complained of race discrimination and therefore no protected act had occurred, and she could not succeed in a victimisation claim.

EAT rules context must be considered

Ms Kokomane appealed to the EAT, claiming that the Tribunal had made an error of law when assessing whether she had done a protected act. The EAT ruled that Tribunals must consider all the contextual factors when employees provide information. It found that employers must consider, knowing what they know in particular cases, whether complaints made could be capable of amounting to alleged discrimination. This is the case even if discrimination is not expressly mentioned. In this case, the employer knew that Ms Kokomane was the only non-white, full-time employee, and that she had complained about differential treatment compared to her colleagues, and had drawn to their attention a stereotype of black women being loud.

The EAT upheld Ms Kokomane’s appeal, ruling that the Employment Tribunal had failed to consider all factors when assessing her complaints. The Tribunal should have considered whether the employer, knowing what it did, would reasonably have inferred that Ms Kokomane was making a complaint of discrimination, even if she did not expressly mention discrimination.

The case was remitted back to the Tribunal to reconsider this point.

Considerations for employers

This ruling means that employers should take extra care when met with a complaint, to carefully consider the context in which it is made. If, knowing what they know, they could reasonably understand the complaint to be one of alleged discrimination, then a protected act may well have occurred and they will need to be particularly careful to ensure they do not treat the employee detrimentally as a result. Otherwise, they risk a claim of victimisation under the EqA 2010.

When met with a complaint, employers should not just assume that where discrimination is not mentioned, this was not the intended message. Failing to recognise this could have costly consequences, with compensation for a successful victimisation claim being uncapped. We therefore strongly recommend employers treat all complaints with caution, and always consider whether the context in which the complaint is made could have wider discrimination implications, even if not expressly set out as a discrimination complaint.

The judgment in Kokomane can be accessed here.