EAT: Tribunals must consider context when assessing alleged protected acts
The EAT has held that tribunals must take a contextual approach when deciding whether a grievance or complaint amounts to a ‘protected act’ under the Equality Act 2010.
Background
Victimisation under the Equality Act 2010 arises where an individual is subjected to a detriment because they have done a 'protected act', such as alleging discrimination. The legislation does not require an employee to use specific legal language, but there must be a complaint which, in substance, asserts facts capable of amounting to a breach of the Act.
In Kokomane v Boots Management Services Ltd, the claimant, who was the only Black employee in her team, raised grievances in 2020 and 2021. She alleged that she had been bullied and treated differently from colleagues, and referred to being accused of 'shouting' during a controlled drugs handover. In a grievance meeting, she referred to negative stereotypes about Black women being perceived as 'loud'.
The employment tribunal found that the claimant had not made a protected act, reasoning that she had not expressly referred to race or discrimination. Her victimisation claim was dismissed.
EAT decision
The EAT overturned the tribunal’s decision. It held that the tribunal had adopted too narrow an approach to what could amount to a protected act, focusing too heavily on the absence of explicit references to race or discrimination and failing to properly analyse the context in which the complaints were made.
The EAT confirmed that tribunals must consider how the employer, in light of what it knew at the time, would reasonably have understood the complaint. That includes considering the factual background, such as the claimant being the only Black employee, her reference to being treated differently, and the mention of stereotypes in the grievance meeting.
The EAT found that the tribunal’s reasoning did not clearly indicate that it had assessed this broader context, and the legal test had been misstated and misapplied. The case was remitted to the same tribunal to reconsider the issue, applying the correct legal principles.
Learning points for employers
This case is a reminder that complaints of unfair treatment should not be dismissed simply because they lack legal terminology. Even where an employee does not explicitly allege discrimination, employers should consider whether their complaint - viewed in its full context - raises issues that may relate to a protected characteristic.
Line managers and HR teams should be alert to possible Equality Act implications in grievances and ensure such concerns are handled with care, with reference to the broader circumstances as well as the words used.