A recent update on victimisation and protected acts under the Equality Act
Employees are advised to think carefully about the wording used when writing a grievance to their employer, after the Employment Appeal Tribunal held that an employee’s allegations in her written grievance that the employer’s conduct “may amount to discrimination” would not constitute a protected act under the Equality Act 2010.
The employee in question was claiming that she had been victimised by her employer, following a string of events including an allegation that the employer had arranged the Christmas event on a date that the employee and the only other female staff member could not attend.
The employee’s use of the word “may” was held to signify an element of doubt or scepticism over the belief in her statement that she had been discriminated against. Furthermore, she failed to make specific reference to sex discrimination in her grievance and this was distinguished from the fact she had made clear complaints about other matters. As the employee was an experienced HR professional, was articulate and well educated she was held to a high standard and expected to be clear about her allegation of discrimination.
The Equality Act 2010 states that victimisation occurs where a person subjects another person to a detriment because they have either done a protected act or because they believe they have, or may do, a protected act.
A protected act includes alleging that there has been a contravention of the Equality Act and so covers a person who make allegations of discrimination. It was on this basis that the employee asserted that she had made a protected act. However, because her written grievance only alleged that the employer may have discriminated against her, it was not sufficient to amount to a protected act.
What does this mean for employees?
An employee considering bringing a case of victimisation must use clear and unambiguous language when asserting to their employer that there has been a breach of the Equality Act. Whilst many employees would naturally want to approach such a subject with a certain level of delicacy, particularly if they want to maintain a relationship with their employer, this high level of certainty needed when making a claim against an employer could dissuade many employees from making a claim at all.
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