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Employment Appeal Tribunal Judgment on Victimisation

Meredith Hurst Monday, June 17, 2013

A recent judgment of the Employment Appeal Tribunal has underlined the difficulties that employers may face when an employee makes persistent allegations of discrimination against the employer and fellow employees. The case of Woodhouse v West North West Homes Leeds Limitedconcerned an employee who had submitted no less than nine grievances and nine Employment Tribunal complaints against his employer over a period of more than four years. The grievances and Employment Tribunal complaints alleged race discrimination, initially in respect of conduct by managers but then also in relation to the handling and the outcomes of the grievances themselves. The employee was eventually dismissed by his employer because it found, on the basis of the repeated grievances and Employment Tribunal complaints, that the employee had lost trust and confidence in it as an employer and that the continuation of the employment relationship was therefore untenable.

Under the Equality Act 2010 an employer victimises an employee if the employee has carried out a "protected act", that is, has alleged that an employer or another party has contravened the provisions of the Equality Act 2010, and is treated less favourably because of this, or because the employer thinks that they have carried out a protected act.

In Woodhouse v West North West Homes Leeds Ltd the Employment Tribunal found that the dismissal did not amount to victimisation. It concluded that the reason for the dismissal was some other substantial reason, this being the fact that the Claimant's behaviour in repeatedly submitting grievances and Employment Tribunal claims which were without foundation had correctly led the employer to conclude that further employment would lead to the submission of further damaging and baseless grievances and claims, and that as such it was justified in dismissing the Claimant. The Tribunal found, by a majority, that the dismissal was unfair because the employer did not adequately warn the employee prior to his dismissal that his employment was at risk if he continued to submit grievances and ET1s. It found that the dismissal did not amount to victimisation because it found that another employee who had repeatedly submitted grievances and Tribunal claims which were without foundation and did not allege discriminatory conduct would also have been dismissed.

The Employment Appeal Tribunal found that the Tribunal had erred in law in holding that the Claimant's dismissal did not amount to victimisation. The Equality Act 2010 provides that an employee will be victimised if they are treated less favourably because they have carried out a protected act. This does not involve a comparative exercise, that is, a comparison between the employee alleging victimisation and a comparator, but rather requires the Tribunal to look at the reason for the alleged less favourable treatment. Therefore the Tribunal erred in attempting to compare the Claimant's conduct with another employee who had submitted multiple grievances and Tribunal claims. The correct comparator was an employee who had not submitted any grievances or Tribunal claims.

The Equality Act 2010 does provide a defence for an employer facing a victimisation claim in that it will not be victimisation if the protected act is false and made in bad faith. However, in Woodhouse both the employer and the Tribunal found that although the grievances and claims were unreasonable and without foundation they were not made in bad faith. As such the Employment Appeal Tribunal found that the only conclusion possible was that the employee was dismissed because of the protected acts and his dismissal therefore amounted to an act of victimisation.

This case makes it clear to employers that an employee who is making allegations of discrimination must be treated extremely carefully. Even if the allegations are numerous and appear unreasonable and without foundation an employer who treats the employee less favourably because of these will be liable for victimisation unless they can show that the allegations or claims were made in bad faith.