VICTIMISATION
Victimisation: What constitutes a protected act? (or How to say “you’re discriminating against me” without expressly saying it)
Many employers will be familiar with the Equality Act requirement not to retaliate against workers who complain about unlawful discrimination. That would be victimisation, right? It’s subjecting the worker to a detriment for doing a protected act.
But what if there has been no express allegation of unlawful discrimination and no reference to any protected characteristic in the allegation relied upon by the worker as the protected act? Surely the complaint must at least state that the alleged discriminatory treatment is on grounds of race, sex, orientation, disability, age, religion or belief? Apparently not.
This issue was considered in the recent EAT case of Kokomane v Boots Management Services Limited [2025] EAT 38.
"Most employers do not intend to retaliate against those who raise complaints, but this case will at least mean that they are forewarned of the greater possibility that victimisation may be alleged in response to any perceived detriment following certain complaints."
The claimant, Ms Kokomane, was employed by the respondent, “Boots” as a Customer Adviser. She was the only non-white full-time employee at her branch in Sheerness and was considered a good employee, but her relationship with her manager was difficult and the employment ended in acrimony following a redundancy exercise in 2021 and came before the Employment Tribunal in 2023 where claims of unfair dismissal, race related harassment and victimisation were alleged.
The alleged victimisation included:
unfair desktop redundancy selection exercise;
refusal to refer the claimant to occupational health; and
unfairly selecting the claimant for redundancy and dismissing her.
Briefly, s.27 of the Equality Act 2010 deals with Victimisation as follows:
Victimisation
(1) A person (A) victimises another person (B) if A subjects B to a detriment because—
(a) B does a protected act, or
(b) A believes that B has done, or may do, a protected act.
(2) Each of the following is a protected act—
(a) bringing proceedings under this Act;
(b) giving evidence or information in connection with proceedings under this Act;
(c) doing any other thing for the purposes of or in connection with this Act;
(d) making an allegation (whether or not express) that A or another person has contravened this Act.
The claimant relied on the following as protected acts:
two separate written grievance letters of complaint about the treatment she’d received from her manager (in relation to alleged shouting by the claimant) and then the failure to act on the complaint, neither of which mentioned discrimination or that she’d been treated differently on grounds of her race;
a grievance hearing where the claimant made reference to a trope about black women being “loud”, but did not specifically complain about race discrimination (and neither the outcome letter nor subsequent appeal expressly suggested that there had been a complaint of race discrimination).
The Employment Tribunal found that there had been no complaint of race discrimination and no protected act so, consequently, no victimisation. The claimant appealed this decision to the EAT.
The EAT reviewed the case law around what is required for an act to be a protected act and concluded:
“Although it will usually be the case that that the Equality Act element [reference to less favourable treatment on grounds of a protected characteristic – in this case race] is made explicit it is not necessary that it should. An ET would be entitled to reach a decision based on context that the word “race” is unnecessary where it is held that the factual matters that are relied upon meet the definition.
…the law could be summed up in this way: what is necessary is that the ET should take account of all of the factors that are provided in the information given by the employee to the employer. In addition the ET needs to consider that information on the basis of how it would be understood by the employer in context. It would be understood by the employer, in part, because of the general facts about the employee and the place of work, which the employer would know of in any event. In terms, that the employee’s complaint should be considered by the ET by examining the way that it would be understood by the employer. When the employee makes the complaint explicit that will be an easy task. When the complaint is oblique the context becomes important.
So, can a worker allege victimisation when their alleged protected act makes no mention of the Equality Act, nor of any alleged protected characteristic on the grounds of which less favourable treatment is alleged to have taken place? Absolutely, according to the EAT, where the context as it would be understood by the employer makes it clear that unlawful discrimination had been alleged.
Employers should therefore be slow to assume that a grievance or other complaint is not a protected act. Rather, they should consider the context and all information provided to them by the complainant. Where the complainant is the only person in the workplace with a particular characteristic, and particularly if that characteristic has been referenced separately, employers should consider whether dots need to be joined between such reference and a subsequent complaint of less favourable treatment.
Most employers do not intend to retaliate against those who raise complaints, but this case will at least mean that they are forewarned of the greater possibility that victimisation may be alleged in response to any perceived detriment following certain complaints.
As always, if you’d like to discuss this or any other issues from this month’s newsletter please do get in touch.