Following on from our previous post on harassment in our continuing series on potential discrimination issues in the restaurant industry (and generally), this – the last post in the series – considers victimisation in the restaurant industry. We will therefore examine the legal definition of victimisation under s.27 of the Equality Act 2010 and consider a worked example to allow us to apply the facts to the law. Certain practical tips for employees and employers relating to victimisation in an employment law context will then follow at the end of the post.

Victimisation under s.27 of the Equality Act 2010

Victimisation occurs when a person is subjected to a detriment because that person does a protected act or the person who is alleged to have been victimised has done or may do a protected act. A “protected act” is defined under s.27 as constituted by one of the following:

  • Bringing proceedings under the Equality Act 2010 (for discrimination, harassment, or otherwise); and/or
  • Giving evidence or information in connection with proceedings brought under the Equality Act 2010; and/or
  • Doing any other thing for the purpose of or in connection with the Equality Act 2010; and/or
  • Making an allegation that another person has contravened the Equality Act 2010

An example of a “protected act” would be complaining about discriminatory treatment that had been received.

An important stipulation is that the protected act must be made in good faith – it must be made honestly and with a reasonable belief in its truth (i.e. if a false allegation was made that a person had contravened the Equality Act 2010 then they wouldn’t be able to rely on victimisation as a cause of action).

Further, it is not only workers who have been discriminated against who may pursue a claim of victimisation. For example, a white worker who supports a black worker in a grievance regarding discrimination can rely on victimisation as a cause of action if they are subjected to a detriment.

A person is subjected to a detriment if they are subjected to any disadvantage. This can include dismissal, non-promotion, a change in their contract terms, or a refusal to give a reference. However, it can also be more subtle, such as refusing holiday leave to a worker on requested dates or pressurising a worker to drop an allegation of discrimination and threatening them if they go ahead.

Causation is often difficult to prove in victimisation cases. For example, if a worker was demoted for supporting a colleague’s allegation of discrimination, the employer could simply state that the worker had demonstrated that they were not capable of fulfilling that position.

Worked example of victimisation

Andreas also works at Danny’s Burgers as a waiter. He is 44 years old and is of Jamaican origin. He is black. Although he is the most qualified and hard-working worker at Danny’s Burgers, Andreas was recently passed over for promotion to the job of assistant manager. Chris, a worker with much less experience and much less of a work ethic, was promoted instead. Andreas was annoyed by this but didn’t think he had been discriminated against until he overheard Dave, the majority shareholder in Danny’s Burgers, say that “Andreas just wasn’t up to the job. No Jamaican can be trusted with responsibility, and especially not a white one”. Andreas was extremely hurt by this and decided to submit a formal grievance relating to this. Chris, the new assistant manager, is unhappy with Andreas’ allegation and tells him to “shut his trap or you’ll get us all in trouble. And if you get me in trouble, you’ll lose your job”.

This is a clear case of victimisation. Andreas has been subjected to a detriment because of his grievance. His grievance is a protected Act under the Equality Act 2010 and it is clear that the reason for the detriment he has received is his protected act. Andreas could therefore pursue a claim for victimisation in the Employment Tribunal (along with possible other claims).

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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