Victimisation – what do employers need to be aware of?

The Employment Appeal Tribunal (EAT) has recently determined that context must be considered when assessing whether a ‘protected act’ has occurred, as illustrated in the recent case of Kokomane v Boots Management Services Ltd. 

Facts  

Ms Kokamane (the Claimant), the only black employee in her workplace, raised a grievance concerning accusations of her shouting in the workplace and claimed that she had been treated differently from her colleagues. The Claimant subsequently filed a second grievance, stating that her initial grievance had not been addressed and further alleging instances of bullying.

The Claimant did not mention race discrimination in the grievances. However, during a grievance hearing, the Claimant remarked that black women and girls are known to be loud.

Boots Management Services (the Respondent) was undergoing a redundancy process, and the Claimant was dismissed due to redundancy.

ET Decision  

The Claimant submitted claims to the Employment Tribunal (ET), asserting that her dismissal constituted victimisation because she had engaged in a protected act by filing a grievance.

Victimisation occurs when an individual is treated less favourably due to their engagement in a ‘protected act’, which may include lodging a complaint regarding discrimination.

The ET held that the Claimant had not performed a protected act as there was no mention of race discrimination during the grievance hearing or appeal process.

EAT Decision 

When the Claimant appealed, the EAT ruled that discrimination does not need to be explicitly mentioned to qualify as a protected act.

The EAT stated that tribunals should consider all factors and determine what the employer would have understood from the information provided by the Claimant as part of her complaint.

In this case, they should have considered that the Claimant was the only black employee, she was accused of shouting, treated differently, and believed that these accusations were negatively linked to black women during the grievance process.

What can employers take from this? 

Employers must recognise that where an employee complains of discrimination about a protected characteristic, they have performed a protected act.

This case illustrates that even if discrimination is not explicitly cited, the employee may still have performed a protected act. Employers should not assume otherwise. The Equality Act 2010 does not require an express reference to a protected characteristic for a complaint to qualify as a protected act. Instead, the context and the employer’s understanding of the grievance are critical.

As this case demonstrates, the tribunal will consider the context, known information and the circumstances to determine whether an employer understood the complaint as one of discrimination.

For further advice or assistance with any of the above, please get in touch with a member of the Employment team.