Complaint, not protected act, was the reason for detriment

Background

In the case of Leighton v Renfrewshire Council, the claimant worked in an autism support service. During the COVID-19 pandemic, he volunteered to help a disabled tenant move into temporary accommodation while repairs were carried out to the tenant's home. The assistance fell outside his normal duties but was approved by his manager.

Following the move, the tenant's psychologist made a complaint about the support provided, including allegations of a breach of confidentiality. While that complaint was investigated, the council temporarily moved the claimant to alternative duties to prevent further contact between him and the tenant.

The claimant brought a victimisation claim under the Equality Act 2010. He argued that helping the disabled tenant was a protected act and that his temporary redeployment amounted to unlawful victimisation.

The employment tribunal dismissed the claim. The claimant appealed to the Employment Appeal Tribunal (EAT).

EAT decision

The EAT agreed that the tribunal had made an error when considering whether the claimant had carried out a protected act. The tribunal had wrongly approached the issue by suggesting that not every interaction with a disabled person amounts to a protected act, when that was not the claimant's case. It should instead have considered whether the specific assistance provided was done for the purposes of, or in connection with, the Equality Act.

However, that error did not affect the outcome. The EAT held that the tribunal had correctly analysed why the claimant had been moved to alternative duties. The evidence showed that the council acted because a complaint had been made and needed to be investigated, not because the claimant had assisted the disabled tenant.

The complaint was capable of being treated as separate from the alleged protected act. The council's decision was motivated by the need to manage the investigation and avoid further contact between the claimant and the tenant while it was ongoing. As a result, the necessary causal link between any protected act and the detriment was not established. The appeal was therefore dismissed.

Learning points for employers

This decision is a useful reminder that victimisation claims require more than proof that an employee carried out a protected act and later suffered a detriment. The employee must also establish that the detriment occurred because of the protected act.

Employers can legitimately take action in response to issues arising after a protected act, provided the reason for the treatment is genuinely separate from the protected act itself. In this case, the employer's decision to redeploy the employee temporarily was driven by the existence of a complaint requiring investigation, rather than by the assistance he had provided to the disabled tenant.

Where concerns are raised about an employee's conduct, employers should be clear about the reasons for any interim measures they take and ensure those reasons are properly documented. Being able to demonstrate that action was taken to facilitate a fair investigation, rather than because an employee exercised rights under the Equality Act, may be critical if a victimisation claim is later brought.

For more information or advice, please get in touch with Elizabeth McTeigue in our Employment team.