Defending a Victimisation Claim

Responding to Victimisation Claims

Victimisation claims arise under Section 27 of the Equality Act 2010 (EqA 2010) and allege that an individual has suffered a detriment because they have done, or may do, a "protected act" in relation to a protected characteristic. Successfully defending an employer (the respondent) against such a claim requires challenging the elements of the statutory test, especially causation, and demonstrating that the employer's actions were justified and reasonable.

I. Immediate Procedural Requirements

A robust defence begins with meticulous procedural compliance, relying on the Employment Tribunal Procedure Rules 2024 (ET Rules 2024).

A. The ET3 Response Form

The employer must present its response to the claim (ET1) using the ET3 response form within 28 days of the date on which the tribunal sent a copy of the claim.

Content of Resistance

Box 6 of the ET3, the Grounds of Resistance, must set out the facts relied on, address every issue raised by the claimant, and provide a detailed rebuttal of the claim's specifics with supporting information, dates, names, and the gist of conversations relied upon. The defence must be set out in sufficient detail for the tribunal to ascertain why it has reasonable prospects of success.

Consequences of Delay

A response presented outside the 28-day limit will generally be rejected unless accompanied by an application for an extension of time. If the response is rejected or not presented, the tribunal may proceed to enter judgment against the employer (default judgment).

B. Challenging Jurisdiction and Time Limits

We initially review jurisdictional issues, such as whether the claim was made out of time. A victimisation claim must be brought within the relevant limitation period.

II. Challenging the Protected Act

The foundation of a victimisation claim is the protected act. We focus on demonstrating that the claimant's action either did not qualify as a protected act under Section 27(2) of the EqA 2010 or falls under the exception for bad faith.

A. Identifying the Protected Act

A protected act involves: bringing proceedings under the EqA 2010, giving evidence or information in connection with such proceedings, doing any other thing for the purposes of the EqA 2010, or alleging that the respondent or another person has contravened the EqA 2010.

B. Disproving an Allegation of Contravention

If the claim relies on an internal allegation of discrimination (Section 27(2)(d)), we challenge whether it was sufficiently clear and factually based to be considered a protected act.

Information vs. General Complaint

Merely making a criticism, grievance, or complaint that suggests unfair treatment generally, without suggesting an allegation of discrimination or contravention of discrimination legislation, is insufficient.

Context is Key

We assess the context to argue the claimant did not convey sufficient factual content to show a breach of the EqA 2010. If the claimant used equivocal language (e.g., "may amount to discrimination"), and their background (e.g., working in HR, being articulate) suggests they knew the appropriate language but failed to use it, this can support the defence.

Employer's Understanding

We demonstrate that the employer did not understand the complaint to be an allegation of discrimination. However, the correct approach requires assessing what the employer would have understood from the complaint, considering the broader context and surrounding circumstances, not just the specific words used.

C. Establishing False Statement Made in Bad Faith

Giving false evidence or information, or making a false allegation, is not a protected act if done in bad faith.

The Burden of Proof

It is the employer's responsibility to establish that there is bad faith.

Focus on Honesty

The primary question is the claimant's honesty: did they act honestly in making the allegation?. If the claimant subjectively believed their allegation, their motive (e.g., using a grievance to deflect performance processes) does not necessarily mean they acted in bad faith.

Procedural Requirement

Because bad faith is a serious allegation, it is likely to be an error of law if the tribunal concludes bad faith without putting the allegation to the relevant witnesses during cross-examination.

Evidence

We present evidence to demonstrate that the allegation was both false and malicious or dishonest.

III. Disproving Causation and Detriment

The victimisation claim requires the claimant to show they were subjected to a detriment "because" they did (or might do) a protected act. The protected act must be a real reason, having a material influence on the treatment, not simply a "but for" cause.

A. Challenging Detriment

We argue that the alleged treatment was not detrimental. The test for detriment is whether a reasonable worker (or service user) would or might take the view that, in all the circumstances, the treatment was to their detriment.

Objective Reasonableness

While the subjective impact on the claimant is considered, their perception must also be objectively reasonable. An unjustified sense of grievance is not a detriment.

Honest and Reasonable Litigation Conduct

Stress or worry caused by the employer's "honest and reasonable" conduct during its defence or settlement negotiations will generally not amount to a detriment for victimisation purposes, as litigation inevitably causes stress and worry.

B. Establishing a Separable Reason for Action

A key defence is establishing that the employer's action was taken for a reason genuinely separable from the protected act. We must demonstrate that the protected act was merely the context, and not the actual reason for the employer’s actions.

Conduct vs. Disclosure

For example, where an employee is dismissed for misconduct (e.g., abusive behaviour, failure to accept management instructions, or making multiple serious, unfounded complaints that cause a breakdown in the relationship) that is distinguishable from the act of complaining (the protected act), the claim may fail.

Focus on the Decision

We demonstrate that the decision (e.g., dismissal, relocation, refusal of notes) was influenced by factors arising out of, but ultimately separate from, the protected act. For instance, if a secondment was terminated because the agreed-upon period had expired, the termination was due to the expiry, not the earlier settled claim.

C. Defending Actions Taken During Litigation

Where the claim relates to the employer's conduct during litigation, we rely on the following defences:

Judicial Proceedings Immunity (JPI)

JPI covers anything said or done from the inception of proceedings onwards, including pleadings, evidence given by witnesses, and the contents of the ET3. Therefore, statements in the ET3, allegations put by counsel, or witness evidence cannot be claimed as victimisation.

Honest and Reasonable Conduct of Litigation

An employer is entitled to take honest and reasonable steps to protect its position in pending or anticipated litigation. We demonstrate that the employer’s conduct was aimed at safeguarding its legitimate litigation interest, not unduly pressurising the claimant to concede their claim.

IV. Defence against Vicarious Liability (Victimisation by Colleagues)

Suppose a claim is brought because a co-worker victimised a claimant. In that case, the employer is generally legally responsible for the employee’s actions carried out in the course of employment (vicarious liability).

The "All Reasonable Steps" Defence

We help the employer establish the statutory defence under Section 109(4) of the EqA 2010 by proving that it took "all reasonable steps" to prevent the employee from committing the detrimental act or anything of that description. This involves providing evidence of effective anti-victimisation policies, training, and proactive management of complaints.