Understanding Victimisation in the Equality Act 2010
What is Victimisation?
Victimisation is a significant concept within the Equality Act 2010 (EqA 2010) that aims to prevent individuals from suffering detrimental treatment for standing up against discrimination or supporting others who do. This legal note examines victimisation in detail, drawing on Section 27 of the EqA 2010, and covers its application across various fields, including employment, goods and services, education, premises, and membership of clubs and associations.
Key Terminology
For consistency, this note uses generic terms to describe the parties involved in a victimisation claim:
Claimant - Refers to the employee, service user, or any other individual protected by the EqA 2010.
Respondent - Refers to the employer, service provider, or any other person or entity with duties under the EqA 2010.
The court or tribunal - Encompasses various legal bodies such as the employment tribunal, EAT, county court, High Court, Court of Appeal, or Supreme Court.
Victimisation Meaning
Victimisation occurs when a person (A) subjects another person (B) to a detriment because:
B has done a protected act, or
A believes that B has done, or may do, a protected act.
Only individuals are protected from victimisation, not organisations. While victimisation commonly involves a respondent who has been the subject of a discrimination complaint, it can also extend to prospective employers or service providers. For example, a prospective employer could be liable for victimisation if they refuse to employ someone who has given evidence against a previous employer in a discrimination case. Similarly, a publican barring a gay man for complaining about derogatory remarks against his sexuality would be victimisation. An employee excluded from team meetings after raising a grievance about sex discrimination would also be an example of victimisation.
Key Aspects of Victimisation
Several key points define victimisation under the EqA 2010:
Detriment due to a protected act
A respondent victimises a claimant by subjecting them to a detriment because the claimant has done, or might do, a protected act, or because the respondent believes they have.
No requirement for a protected characteristic
The claimant does not need to possess a specific protected characteristic (such as age, disability, race, sex, etc.) for victimisation to occur. The crucial element is the link to the protected act. For instance, a non-disabled worker denied a promotion for giving evidence on behalf of a disabled colleague would be a victim of victimisation.
No comparator required
Unlike some other forms of discrimination, a claimant in a victimisation case is not required to show "less favourable treatment" by comparison to a real or hypothetical person who did not do a protected act. However, comparators can still serve a useful evidential purpose. Cases decided under previous legislation, like Chief Constable of West Yorkshire Police v Khan and Brown v TNT Express Worldwide (UK) Ltd , remain relevant for understanding how comparators might be used evidentially. The EAT in Carozzi v University of Hertfordshire affirmed that the core question is whether the decision was influenced to a material degree by the fact that a complaint of unlawful discrimination had or might be made.
False statements made in bad faith are not protected
Statements or allegations made falsely and in bad faith do not constitute protected acts. However, erroneous statements made in good faith are protected.
Honest and reasonable conduct during litigation
A respondent taking honest and reasonable steps to protect its position in litigation should generally not be liable for victimisation.
Protected Acts Explained
Section 27(2) of the EqA 2010 outlines specific actions that are considered protected acts:
Bringing proceedings under the EqA 2010.
Giving evidence or information related to EqA 2010 proceedings, regardless of who initiated them.
Doing any other thing for the purposes of or in connection with the EqA 2010.
Alleging (explicitly or implicitly) that the respondent or another person has contravened the EqA 2010.
Allegations of a Contravention of the EqA 2010
For an allegation to be a protected act, the asserted facts must be capable of amounting to a breach of the EqA 2010 and must be sufficiently clear. Merely making a general criticism or grievance without suggesting discrimination is not enough, as seen in Beneviste v Kingston University .
Context is key
While explicit mention of a protected characteristic like "race" or "sex discrimination" is ideal, it is not always strictly necessary. Tribunals will consider the full context and surrounding circumstances to determine if an allegation of discrimination was made. For instance, in Nyeko v AIG Asset Management (Europe) Limited, a complaint of "unconscious bias" was understood as race discrimination given the context of wanting to set up a group for black employees. Similarly, in Kokomane v Boots Management Services Ltd, the EAT overturned a tribunal's narrow interpretation, holding that Ms Kokomane's grievances, which included being treated differently as the only non-white staff member and being accused of "shouting" (a racial trope), should have been understood as race discrimination by the employer.
Implied allegations
An email from a disabled claimant complaining that his union's advice had "caused me a disabled individual further anxiety" and that the "refusal to provide alternative representation placed a disabled member of Unite under further strain" was held to be an implied, almost express, allegation of a failure to make a reasonable adjustment, and thus a protected act, in Edwards v Unite the Union.
Sophistication of Claimant
The claimant's background and articulation may be considered. In Chalmers v Airpoint Ltd and others an HR professional's use of "may amount to discrimination" without explicitly referring to sex discrimination was deemed insufficient given her knowledge and clarity on other matters.
Relevant Pay Disclosures
Seeking, making, or receiving information from a "relevant pay disclosure" is also a protected act. These disclosures are made to uncover connections between pay and protected characteristics, encouraging pay transparency to address issues like the gender pay gap.
False Statements Made in Bad Faith Not Protected
An allegation is not a protected act if it is false and made in bad faith. The primary question for bad faith is the claimant's honesty: did they honestly believe what they said? An ulterior motive for making the allegation does not automatically equate to bad faith if the claimant genuinely believed the truth of their statement. For example, in Saad v Southampton University Hospitals NHS Trust, a claimant who honestly believed his allegation, but also used it to deflect performance processes, was found not to have acted in bad faith. The burden of proving bad faith lies with the respondent, and it is a serious allegation requiring advance evidence and cross-examination. Examples of false statements made in bad faith include knowingly giving false evidence in a colleague's claim or fabricating an allegation to avoid conviction.
Acts Done Under Previous Discrimination Legislation
The EqA 2010, through a specific Order, extends protection to acts done under previous discrimination legislation, ensuring continuity of protection for individuals who brought proceedings, gave evidence, or made allegations under those former laws.
Time Between Protected Act and Detriment
There is no fixed timeframe within which a detriment must occur after a protected act. The key is to establish a causal link between the protected act and the detriment. A three-year gap between a customer helping in a sex discrimination claim and being refused an overdraft facility by the bank manager, who explicitly referenced the past claim, was considered victimisation.
Causation Between Protected Act and Detriment
Victimisation requires that the detriment occur "because" of a protected act. This "because" test is similar to the "by reason that" test under previous legislation.
Unconscious motivation
The motivation for victimisation does not need to be conscious; an unconscious reason can still lead to victimisation.
Real reason
The protected act does not have to be the sole or main reason for the detriment, but it must be a "real reason". It must be more than merely a "but for" cause. For example, in Chief Constable of Greater Manchester Police v Bailey, the termination of a secondment was not "because of" an earlier settled claim, even though the secondment wouldn't have existed "but for" the settlement, because the real reason for termination was the expiry of the agreed period. Similarly, in Peninsula Business Service Ltd v Baker, covert surveillance of an employee was not victimisation if the employer's real reason was suspicion of private work, rather than the employee's protected act of disclosing a disability.
Treatment separable from protected acts
Courts and tribunals have sometimes found that a respondent's treatment, though connected to a protected act, was for a reason genuinely separate from the protected act itself. For example, in Martin v Devonshires Solicitors, an employee's dismissal for bringing multiple false grievances due to mental illness was not victimisation because the dismissal was due to the serious nature of the complaints and resources consumed, which were separable from the protected acts. However, cases like Martin are rare, and tribunals are expected to distinguish between features that should and should not be treated as separable. In Pasab Ltd t/a Jhoots Pharmacy and another v Woods, a Muslim employee dismissed for calling her employer's business "a little Sikh club" was found not to be victimised because the dismissal was for making an offensive comment, not her implicit discrimination complaint.
Detriment in Victimisation Cases
The test for detriment is broad: "is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?". For service users, it means if they might reasonably consider that the treatment changed their position or put them at a disadvantage.
Subjective and objective elements
The test involves both subjective impact on the claimant and objective reasonableness of that perception. It is sufficient that a reasonable claimant might view the conduct as detrimental, even if a reasonable court or tribunal does not agree.
Not an "unjustified sense of grievance"
An unjustified sense of grievance does not constitute a detriment.
Examples
A job applicant whose vetting process was put on hold pending the outcome of a discrimination claim against a different employer suffered a detriment, even without physical or economic consequence, because a reasonable worker might view it as detrimental. Similarly, a suspension following a tribunal claim can amount to a detriment even without medical evidence of harm.
Can Conduct During Litigation Amount to Victimisation?
When a claimant argues that the respondent's conduct during litigation is victimisation, two key considerations arise:
Judicial Proceedings Immunity (JPI)
This absolute immunity prevents claims based on anything said or done within judicial proceedings, including allegations by counsel, witness evidence, and pleadings. Discrimination tribunal proceedings are considered judicial proceedings for this purpose. JPI extends to witness statements even if not used in court and correspondence related to proceedings. JPI does not, however, cover the manner in which a witness statement was procured if it involves undue pressure, nor does it cover oral threats made outside the judicial process, such as in a tribunal building corridor. Where JPI applies, remedies for improper conduct include cost awards, aggravated damages, striking out the response, or prosecution for perjury in extreme cases.
"Honest and Reasonable" Conduct of Litigation
An employer's "honest and reasonable" steps to defend or settle litigation generally do not amount to victimisation, even if those steps would not have been taken but for the protected act. This principle aims to balance an employer's right to defend itself with a claimant's right to pursue a claim without undue pressure. The "reasonableness" is judged from the claimant's perspective regarding their interest in pursuing the claim, not just the respondent's interest in defending it. A respondent crosses the line when its actions, such as sending threatening letters directly to claimants or involving colleagues, unduly pressurise the claimant or jeopardise their interests. This principle can also apply to pre-action conduct and grievances if tribunal proceedings are anticipated.
Communications with Acas
Section 18(7) of the Employment Tribunals Act 1996 generally protects communications with Acas conciliation officers from admissibility in tribunals. However, if comments made by an employer's solicitor to an Acas officer amount to "unambiguous impropriety" and are designed to deter a claim, they can constitute unlawful victimisation, as seen in Vernon v London Borough of Hammersmith and Fulham.
Where the Relationship Has Ended
Section 108 of the EqA 2010 states that discrimination or harassment can occur even after a relationship has ended, provided it arises out of and is closely connected to the former relationship and would have been unlawful during the relationship. Although Section 108(7) initially appeared to exclude victimisation, the Court of Appeal in Jessemey v Rowstock Ltd and another clarified that post-employment victimisation is indeed covered by the EqA 2010, interpreting the exclusion as a drafting error. The act must still be "closely connected" to the former employment relationship.
Victimisation by Colleagues
Employers are legally responsible for victimisation committed by their employees during employment, and principals are liable for acts by their agents. This responsibility holds regardless of whether the employer or principal knew about or approved the acts. However, employers can raise a defence if they can show they took "all reasonable steps" to prevent the discriminatory act.
Victimisation Because of Association or Perception
Associative Victimisation
While the EqA 2010 includes direct associative discrimination (where treatment is "because of a protected characteristic" that someone else possesses), the concept of associative victimisation (being victimised for association with someone who performed a protected act) is less settled. In Thompson v London Central Bus Company Ltd, an Employment Appeal Tribunal (EAT) allowed a claim for associative victimisation to proceed, interpreting Section 27(1)(a) to cover reliance on others' protected acts. However, this was a first-instance authority and not binding on other tribunals. Given legislative changes that specifically codified associative indirect discrimination but not victimisation, further associative victimisation claims are unlikely to succeed.
Victimisation Because of Perception
Victimisation can occur when a respondent acts based on a belief that a claimant has done, or may do, a protected act, even if that belief is erroneous. The respondent's motivation is crucial, though proving this in practice can be challenging if no actual protected act occurred.
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.
This detailed analysis provides a comprehensive understanding of victimisation under the Equality Act 2010, its key elements, judicial interpretations, and practical implications.
