Victimisation protection: wider than you might think
Victimisation under the Equality Act 2010 arises in an employment context where an employee does a protected act (or the employers believes they have done or may do so), and their employer subjects them to a detriment for that reason. Most HR and employment law practitioners will typically encounter victimisation allegations where the protected act consists of the employee alleging that their employer has breached the Equality Act or bringing proceedings under the Act – i.e. generally in the context of a grievance or Employment Tribunal proceedings in relation to a discrimination or harassment allegation. Two recent EAT decisions serve as a useful reminder that the statutory concept of a ‘protected act’ is broader, and captures an employee “doing any other thing for the purposes of or in connection with [the Equality Act]”. We therefore need to be alert to victimisation risks in a wider set of circumstances.
In Shah v Home Office, the claimant applied for a role under the Home Office’s Guaranteed Interview Scheme, which entitled disabled applicants who met the minimum criteria to a guaranteed interview. The employer believed that he had dishonestly claimed to be disabled in order to access the scheme and instigated a disciplinary investigation. The Tribunal rejected his victimisation claim, holding that ticking a box on the application form to confirm the candidate was disabled and to opt into the scheme was not a protected act. The EAT disagreed. The question was not whether he had complained about discrimination, but whether what he had done was “for the purposes of or in connection with” the Act. Under the circumstances, the EAT held that the Tribunal had failed to consider whether the claimant’s application was connected with the Equality Act’s positive action provisions.
Leighton v Renfrewshire Council makes a similar point, albeit on more unusual facts. The claimant worked in an autism support service and, during the pandemic, helped a disabled tenant move out of temporary accommodation while repairs were carried out. This was outside his normal duties and required line manager approval. He argued that providing this support was a protected act because it was done to prevent disability discrimination and to support the council’s compliance with its public sector equality duties. The EAT held that the Tribunal had not properly engaged with that argument. Although the claim ultimately failed on causation, the judgment underlines that practical steps taken to support compliance with the Equality Act may, at least arguably, fall within the protected act definition. The facts are obviously unusual, but the case illustrates how flexible the catch-all category describing a protected act can be, and the range of circumstances in which we need to be alive to the victimisation provisions.
What does this mean in practice? Employers should be cautious about taking a narrow view of victimisation risk. A protected act is not limited to an employee saying “you have discriminated against me” or issuing Tribunal proceedings. It may include accessing a positive action scheme, asserting eligibility for an adjustment or benefit linked to a protected characteristic, or taking practical steps to help an employer meet its equality obligations. That does not mean that every act involving a protected characteristic will qualify, or that any later detriment will automatically be unlawful: the employee must still show the required causal link. But where the conduct in question is connected with Equality Act rights, positive action, reasonable adjustments or equality duties, employers should pause before treating it as ordinary misconduct or viewing it in isolation from the equality context.
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