Allegation Required Clear Wording to Amount to Protected Act Under Equality Act

Victimisation

In order for victimisation to occur under the EqA 2010, an employee must establish that they have suffered a detriment because they have done a protected act, or the employer believes that they have done, or may do, a protected act. The employee alleging (whether expressly or otherwise) that the employer or another person has contravened the EqA 2010 amounts to a protected act. The employee's assertion, however, must be sufficiently clear.

Chalmers v Airpoint Ltd and Others (UKEATS/0031/19)

Mrs Chalmers was a business support manager carrying out human resources functions for the Airpoint Ltd. She raised a written grievance claiming that she had been excluded from a Christmas party, stating that this "may" be discriminatory.

Her grievance was not upheld and she subsequently brought proceedings in the employment tribunal for sex discrimination, harassment and victimisation, relying on the grievance she raised as the protected act. Her claim for victimisation was dismissed on the basis that she had not in fact made a protected act. In particular the use of the word "may" in her written grievance in relation to the alleged discriminatory act committed by her employer was not sufficient in alleging that the respondent had contravened the EqA 2010.

The Tribunal took into account all of the circumstances of the case and the context. As Mrs Chalmers was experienced in human resources and was an articulate and well-educated individual, the use of the word "may" in her grievance and the failure to refer to sex discrimination in particular, was not sufficient to amount to a clear allegation or complaint that the EqA 2010 had been breached. This was upheld by the Employment Appeal Tribunal, making clear that whether certain words amounted to a protected act would depend on the context and the tribunal's assessment of the evidence of the case.

Context Is Key

This case highlights the importance of the wording used when relying on a particular statement as a protected act. It also emphasises the focus employment tribunals place on the context and circumstances of each case and how wording used by each individual may differ depending on their background and experience. Our employment lawyers can advise further about what may constitute a protected act under the EqA 2010 in the context of potential victimisation claims.

For specialist legal advice on making protected acts under the Equality Act 2010, please contact Helen Hughes in our Employment Law team on 07741 312352, or complete the form below.