Victimisation

Overview

Victimisation is prohibited by the Equality act 2010. In broad terms, victimisation occurs where a worker is treated less favourably because of having raised a complaint, assisted another in raising a complaint of discrimination or the employer reasonably suspects of so doing.

A person victimises another if he subjects that other to disadvantage because the other does a protected act or believes that the latter has done so or may do a protected act. Victimisation is not discrimination in itself, if it is not linked to protected characteristics. A comparator is not required.

A protected act includes taking

• legal action
• giving evidence
• making allegations

The allegation of discrimination need not be in respect of the person the subject matter of the alleged victimisation. Accordingly support for a fellow employee in bringing action et cetera or another protected act is covered.

It is unlawful for a person to instruct, cause or induce another to discriminate against harass, victimises a person or attempt to do so.

Deemed Victimisation

Victimisation is deemed to occur where the worker is subject to adverse treatment because he has done, may have done or may do a protected act. The allegation or assertion need not in fact be correct, provided that it is not made in bad faith.A person is deemed to victimise another if he subjects the other to a detriment because the other does a protected act or he believes that the other has done or may do a protected act.

In the case of job applicants, an employer must not victimise an applicant in the arrangements it makes for deciding to whom to offer employment, the terms of which employment may be offered or by not offering employment.

An employer must not victimise his employee

• as to terms of employment
• as to the way in which the employer affords the employee access to or does not award opportunities for promotion transfer training or any other benefit, facility or service
• by dismissing the other
• by subjecting the other to detriment.

As in other contexts, workers are protected. This covers employees under a contract of employment and also certain others including apprentices and some categories of contractors.

Protected Act

Each of the following is deemed to be a protected act under the legislation

• bringing proceedings under the act (Equality act)
• giving evidence or information in connection with proceedings under the act
• doing any other thing for the purposes of or in connection with the act
• making an allegation (whether express) that the person concerned, or another has contravened the act

The Act includes reference to other discrimination legislation including in particular that in force before the Equality Act 2010.

A protected act includes doing any other thing for the purpose of or in connection with the Equality Act. It can include a range of activities including allegations of breach of equality legislation.

Protected acts include allegations regarding third parties. Accordingly, if an employer subjects a worker to detrimental treatment due to complaints by of discrimination by customers et cetera this may comprise victimisation.

Detriment

Being subject to detriment means that the employee has been subject to disadvantage in some way. This may constitute any circumstance constituting disadvantage. It may for example include denying promotion placing the worker on unpopular work duties disproportionately and dismissal.

The legislation provides that conduct which amounts to harassment is not a detriment in this context. A claim should be made in respect of harassment under equality legislation.

The EHRC code of practice on employment summarises treatments that may constitute detriment in this context.

A protected act may relate to a person other than the employer. It may cover a prospective employer in the context of a job application. To some extent may apply in respect of detrimental treatment after employment.

The detrimental treatment must arise because of the protected act. Causation must be shown. Where there are other factors, the Employment Tribunal makes a decision as to the operative factor.

Employer Liability

It must be shown at a minimum that the employer is aware of the protected act. The employer need not necessarily have expressly or consciously acted by reason of it. However, if it is found to be an influence in the circumstances, this suffices even if not expressly so.

If an employer can show that the detriment or dismissal is due to another operative condition, then it may avoid a claim of victimisation even if the detrimental treatment resulted in some sense from the protected act. In such circumstances there would need to be some other dominant overriding cause clearly applicable in the circumstances.

The onus of proof is on the worker to prove facts from which the Tribunal may draw an inference that has been victimisation. Where this is shown, the onus is on the employer to rebut this presumption.

The presumption may be raised from particular circumstances. For example, the employee may be subject to detriment after a protected act which has occurred were such detriment had not previously occurred.