Victimisation at work is unlawful under the Equality Act 2010.
It is victimisation for an employer to subject a worker to a “detriment” because the worker has done a “protected act” or because the employer believes that the worker has done or may do a protected act in the future.
A worker does not need to have a particular protected characteristic in order to be protected from Victimisation. To be unlawful, the victimisation (the detriment) must be linked to the protected act.
Former workers are also protected from victimisation.
A non-disabled worker supports a disabled colleague during a grievance, by confirming that he agrees that the Company has subjected his colleague to disability discrimination (this is a protected act). The non-disabled worker was then not offered any overtime, which was something he routinely did in the past, his overtime was taken away because of the protected act. This would be an example of victimisation.
Victimisation at Work – What is a Protected Act?
A Protected Act is any of the following:
- Making a claim under the Equality Act 2010.
- Giving evidence or information in connection with a claim brought under the Equality Act 2010.
- Doing anything which is related to the provisions of the Equality Act 2010.
- Making an allegation (whether or not express) that another person has done something in breach of the Equality Act 2010.
- Making or seeking a ‘relevant pay disclosure’ to or from a colleague (including a former colleague).
Example: – A common example is someone alleging that they have been discriminated against at work.
If a worker raises a grievance because they believe they have been discriminated against (this would be a protected act). If the employer then subjects them to a detriment (such as dismissal) because of the protected act, this would be a classic example of victimisation.
Victimisation – What is a Detriment?
The Equality Act 2010 does not define detriment.
What amounts to a detriment can take many forms and can be anything that the worker reasonably considered changed their position for the worse or placed them at a disadvantage.
The situation must be looked at from the worker’s viewpoint, but the perception must be “reasonable” in the circumstances.
A detriment could be a threat, which can reasonably be taken seriously. There is no requirement for the threat to be carried out and you need not demonstrate there were actual consequences from the detriment.
A detriment need not take place whilst the person is still working at the relevant company.
Some Examples of Detriments:
- Disciplinary action.
- Being overlooked for opportunities (training, promotion, attending events).
- Receiving a bad reference after you have left the company.
Was the detriment “because of the Protected Act”
For because of victimisation at work to succeed, it must be found that the detriment was because of the protected act.
There is no time limit between the protected act and detriment, but you need to show a link between the two.
The protected act needs to be one of the reasons for the detrimental treatment, but it need not be the only reason.
As said, the protected act need not be the only reason for the detrimental treatment, but it must be of “significant influence.”
For an influence to be significant, it need not be important, rather the influence must be more than “trivial.”
This is usually the main battleground in victimisation claims, but often protected acts and detriments are easier to establish, but evidencing the connection is more difficult and employers will rarely admit that there is a causal link.
Example – A person works for a company and during their employment, they make a discrimination claim against their employer (this is a protected act). The claim is settled out of court. The person returns to work and a few years later applies for a promotion. The interview process goes well and they think they are going to be offered the job, but they are unsuccessful. When they asked for feedback, there was no substantive reason given. The employee requests the interviewer’s notes and they can see they were scored 1 out of 5 for “loyalty” and there was a note next to this score stating “ET claim.” Despite the several-year gap, this may be sufficient to establish that the detriment (not being offered the promotion) was because of the protected act (the earlier discrimination claim).
A worker cannot claim victimisation where they have acted in “bad faith.” For example, if they gave false evidence or deliberate false allegations of discrimination because these would not be protected acts.
However, if a person makes an allegation in good faith, but it turns out to be incorrect, or they bring or support an Equality Act claim that is unsuccessful, these will still be protected acts.
Victimisation – Compensation
If there has been victimisation at work, the compensation available is the same as other discrimination claims.
When a Claimant succeeds in victimisation claim, an employment tribunal may do some, or all of the following:
- Order the Respondent to pay compensation.
- Make an appropriate recommendation aimed at reducing the adverse effect of the victimisation on both the Claimant and the wider workforce.
- Make a declaration as to the rights of the Claimant and the Respondent in relation to the matters to which the proceedings relate.
The most common “remedies” available for victimisation claims are:
Financial Loss – This covers the financial loss caused by the victimisation. For example, if your dismissal was victimisation, you would claim for any loss of earnings. If the decision not to offer you a promotion was victimisation, then you may claim any difference in salary if the promotion came with a pay rise.
Injury to Feelings – An award for injury to feelings is to compensate and not to punish, and is designed to address the anger, distress, and upset caused by the victimisation. The award for injury to feelings is separated into three bands:
Bands for Injury to Feelings:
|Band||Vento (December 2002)||Da’Bell (September 2009)||Updated – Claim brought after 06 April 2022|
|Top band for the most serious cases, such as where there has been a lengthy campaign of harassment. wards can exceed this only in the most exceptional cases.||£15,000 – £25,000||£18,000 – £30,000||£29,600 to £49,300|
|Middle band for serious cases which do not merit an award in the highest band.||£5,000 – £15,000||£6,000 – £18,000||£9,900 to £29,600|
|Bottom band for less serious cases, such as a one-off incident or an isolated event.||£500 – £5,000||£600 – £6,000||£990 – £9,900|
Personal Injury – This can form part of your claim if an act of victimisation caused personal injury. There is clearly an overlap with injury to feelings.
The Tribunal can also make an award for the following, but these are rare:
Aggravated damages – Aggravated damages are awarded in the most serious cases where the behaviour of the Respondent has aggravated the Claimant’s injury to feelings.
Exemplary or “punitive” damages – Such an award is rare and can be awarded to punish the Respondent, rather than compensate the Claimant. This award is available in limited cases where the compensation itself is an insufficient punishment and the Respondent’s conduct is either:
- Oppressive, arbitrary or unconstitutional action by servants of the government.
- Calculated to make a profit which could exceed the compensation otherwise payable to the Claimant.
Usually, unless there is also some financial loss that can be attributed to the victimisation, the usual award is for injury to feelings only.