Discrimination (Equality Act 2010) Victimisation

Question 1

What is the definition of Victimisation?

Answer 1

Section 27 of the Equality Act 2010 (EA 2010) defines ‘victimisation’. S27 offers protection for people who have been subjected to a detriment because they have done or may do a protected act.

Question 2

S27(2) defines a protected act as:

Answer 2

S27(2) defines a protected act as:
a) bringing proceedings under EA 2010;
b) giving evidence or information in connection with proceedings under EA 2010;
c) doing any other thing for the purposes of or in connection with EA 2010;
d) states that making an allegation (whether or not express) that the employer or another person has contravened EA 2010.

Question 3

S27(3)

Answer 3

S27(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

Question 4

S27(4)

Answer 4

states that the act applies only where the person subjected to a detriment is an individual.

Question 5

When might victimisation occur?

Answer 5

Victimisation can occur when someone:
1) Makes a discrimination or harassment complaint
2) Supports someone else’s complaint
3) Gathers information for a complaint
4) Acts as a witness in a complaint
5) Gives evidence that doesn’t support someone else’s complaint

Victimisation can also occur if someone is suspected of doing any of the above. The treatment must be linked to a “protected act”.

Question 6

What must the claimants prove?

Answer 6

For a claimant to succeed, he/she needs to prove that:

1) he or she committed one of the protected acts mentioned in section 27 EA;

2) he or she was treated less favourably, and the less favourable treatment was because the claimant did the protected act.

The EA removed the requirement of a comparator, so the basis of a victimisation claim is whether the claimant has suffered a ‘detriment’ because the employer knows or believes that the employee did the protected act.

For example, an employer threatens to dismiss a staff member because he thinks she intends to support a colleague’s sexual harassment claim. This threat could amount to victimisation

To establish a victimisation claim, one must demonstrate that the negative action taken against them (detriment) was directly caused by their protected act, not just coincidentally occurring after it.

While the protected act must be a significant contributing factor to the detriment, it doesn’t have to be the sole reason.

The individual claiming victimisation has the burden of proving the causal link between their protected act and the negative treatment they received.

Question 8

Detriment

Answer 8

The word ‘detriment’ has been held that it should be given a broad meaning (Deer v University of Oxford (2015).

Question 9

post-employment victimisation claim

Answer 9

In Rank Nemo (DMS) Ltd, the claimant successfully claimed unfair dismissal and discrimination. The employer refused to pay the compensation and so the claimant successfully claimed victimisation.

& (Jessemey v Rowstock Ltd (2014).

Question 10

associative victimisation claim

Answer 10

(Thompson v London Central Bus Company (2016)

In an associative victimisation claim, it is not necessary for the claimant to establish a particularly close relationship with the person who performed the protected act. The claimant only needs to show factual causation, i.e. that the detriment was suffered as a result of the protected acts. It is the causal link that has proved difficult to establish.

Question 11

What is the casual link and detriment?

Answer 11

The causal link has proved to be more difficult to establish.

A “causal link” in victimisation refers to the connection between a “protected act” (like raising a discrimination complaint) and the subsequent negative treatment or detriment suffered by an individual, meaning that the detrimental action was taken because of the protected act, establishing a clear cause-and-effect relationship; it’s crucial to prove this link when making a victimisation claim, as simply showing a protected act and a negative outcome isn’t enough

In Nagarajan v London Regional Transport (1999),

This approach seems to converge with the ‘but for’ test in direct discrimination (James v Eastleigh BC (1990) and removed the requirement of motive.

The question is therefore ‘but for’ the protected act, would the claimant have been subjected to the detriment?