The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of ‘sex’.
Victimisation occurs where an employer subjects an employee to a detriment because that employee carries out a ‘protected act’, or the employer believes that the employee has, or may, carry out a protected act. Protected acts are defined in the legislation as:
- bringing proceedings under the Equality Act 2010 (for example, lodging a tribunal claim)
- giving evidence or information in connection with proceedings under the Act (for example, the complainant or a witness giving evidence at a tribunal)
- doing any other thing for the purposes of, or in connection with, the Act (for example, reporting alleged discriminatory behaviour to the Equality and Human Rights Commission)
- making an allegation about a contravention of the Act (for example, raising a grievance or a complaint about an alleged discriminatory act by the employer or a colleague).
When bringing a claim for victimisation, the employee must do so in good faith. In other words, they must reasonably believe they have been subject to a detriment on the grounds of a protected act.
In the case of Durrani v London Borough of Ealing, the EAT dismissed a claim on the basis that the claimant had not undertaken a protected act. Instead, they had claimed they were discriminated against due to being treated unfairly but had failed to show this was related to their protected characteristic of race. However, the EAT were clear that cases of this nature were very fact specific, and the circumstances should also be carefully considered by tribunals.
The claimant in this case, who partly worked in HR, raised a grievance against her manager. This was because she and another female colleague were not invited to a Christmas event that male colleagues were invited to. As part of her grievance, she stated the following:
‘I do not find you approachable of late, your manner is aggressive and unhelpful…my work is mostly ignored and I have been excluded from…the Christmas night out…which may be discriminatory.’
The organisation did not uphold her grievance. She later brought claims to the employment tribunal (ET) for sex discrimination, harassment and victimisation, arguing that her grievance was the protected act she sought to rely on.
The tribunal dismissed her claim, finding that her grievance had not amounted to a protected act. In forming their decision, they considered that she was experienced in HR, meaning that she would have known the appropriate wording to use if she wanted to raise a complaint of discrimination at the time. Her grievance had not clearly made an allegation that sex discrimination had taken place.
The claimant appealed on the grounds that the tribunal’s conclusion was perverse. She argued that it had ignored her ‘explicit statement’ of sex discrimination and that there was no evidence to support their conclusion she had not meant to raise this issue at the time of her grievance. She went on to state that her reference to discrimination in her grievance was a reference to discrimination in general, meaning this was clearly a reference to sex discrimination.
The EAT dismissed her appeal, finding that the tribunal had been entitled to reach the conclusions they did.
They first addressed the wording of her grievance, finding that whilst it had clearly complained about other matters, it was not a clear complaint of sex discrimination. Due to her knowledge of the HR process and employment law, the EAT would have considered it surprising that, from her activities at the time, she was considering legal proceedings. This was because she used the phrase ‘may be discriminatory’; if she had wanted to pursue a sex discrimination claim here, the EAT was of the opinion she would have been much clearer.
They then went on to consider the factual content surrounding her grievance. Crucially, the tribunal had concluded that she had not been discriminated against due to not being invited to the Christmas party and that this had actually been the result of a misunderstanding. Again, upon this incident occurring, she had not made a direct complaint of discrimination.
This is an interesting outcome, stating that the claimant’s use of specific language had not amounted to a specific complaint of a breach of the Equality Act 2010. That said, it should be clear that these situations will be fact specific; a key part of this case was that the claimant was in a position to know how to make an accusation of discrimination and had not used clear enough language to do so. Another claimant not in this position who used this wording may see a different outcome.
Regardless of this, it is vital that organisations are aware of the dangers of discrimination and take all accusations of harassment seriously.