Victimisation

Victimisation at Work

Victimisation at work refers to being mistreated by your employer as a result of a complaint you filed, or assistance you provided in filing, about discrimination based on one or more of the nine protected characteristics. Crucially, this implies that since you have done something that is protected, you may become a victim of victimisation, which is an unlawful act. Just standing up for someone who has the protected characteristic does not require you to possess it.

What is victimisation?

The purpose of the victimisation provisions is to protect workers who have taken steps to exercise their statutory rights or support others in exercising theirs, or because they are suspected of having done, or intending to do so. Without such protection workers might otherwise be reluctant to come forward with complaints for fear of reprisals.

The Equality Act 2010

Section 27(1) EA states:

“A person (A) victimises another person (B) if A subjects B to a detriment because –

(a) B does a protected act, or

(b) A believes B has done, or may do, a protected act.”

Protected Act

Section 27(2) defines “protected act” as:

(a) bringing proceedings under EA;

(b) giving evidence or information in connection with proceedings under EA;

(c) otherwise doing anything for the purposes of or in connection with EA;

(d) making an allegation that A or another person has contravened EA.

It is irrelevant whether the decision to subject to a detriment because of the protected act was made consciously or subconsciously.

In what ways is something detrimental?

When anything is done to you or not done to you that leaves you in a worse situation than you were in before, this is referred to as a detriment. Although the Act does not include a list of behaviours or activities that are to the detriment of others, the following are some examples that are frequently encountered:

• Dismissal due to bullying,

• a lack of prospects for promotion, as well as the assignment of increasingly difficult or laborious duties,

• expressions that are demeaning or insulting,

• If there is a lack of fair procedure,

• social marginalisation,

• unfair disciplinary punishment, and

• preventing individuals from receiving training.

Relates to the protected act

In some contexts, the term "detriment" can refer to a somewhat broad concept. To put it another way, would you say that anything has occurred that has left you in a more precarious position than you were before? If so, your detriment has been increased. In the event that you have committed a protected conduct and have subsequently been subjected to a detriment, you are required to demonstrate that the detriment was a deliberate consequence of the protected act.

Defences

A worker will not be protected by these provisions if the original allegation made was false and made in bad faith (s.27(3) EA). This effectively provides employers with a potential defence to victimisation claims.  If you make or support a discrimination complaint in bad faith, which means that you act dishonestly, and then you suffer a detriment as a result of your allegations, you are not protected from being victimised. On the other hand, if you make a claim or support a claim in good faith, you are protected from being victimised, even if the claims you make turn out to be false.

Example of Victimisation

• A gay man sues a publican for discrimination on the basis that she makes persistent derogatory remarks to other customers about his sexuality. As a result of this, the publican bars him from the pub altogether. This would be victimisation.

• The failure to provide a woman with a payslip following the filing of a claim of sex discrimination.

• An older employee is being fired because their employer believes that you may file a claim for age discrimination in the future.

• Providing a pregnant woman with a negative reference due to the fact that she submitted a complaint regarding maternity discrimination when she was employed.

• Dismissing a person out of employment after discovering that they had filed a complaint of racial discrimination against a previous employer.

• Threatening to fire an employee because they intend to assist a colleague's claim of transgender discrimination in the workplace.

• Following providing evidence in support of a colleague's disability discrimination grievance the witnesses’ hours of work are lowering.

• Making an employee redundant after they gave evidence for a colleague at Employment Tribunal for a disability discrimination claim.

Timescale to bring a claim

No matter how much time has passed between performing a protected act and experiencing a detriment, it does not matter. Nevertheless, you are required to submit any claim to the Employment Tribunal within three months (minus one day) of the occurrence of the detriment.