What is victimisation?

When victimisation occurs in the workplace it lowers employee morale, contributes to a harmful working environment, and may lead to costly tribunal claims. This article discusses victimisation and some things employers can do to help prevent it.

Equality Act 2010

Under the Equality Act 2010, an employee will have been victimised if they were subjected to a detriment because they have done a “protected act” or because someone believes they have done or will do a protected act.  A protected act includes:

• complaining about discrimination;
• supporting another person’s claim of discrimination;
• making an allegation that someone has breached the Equality Act; and
• doing anything else under the Equality Act.

Employers should note that employees who complain about discrimination will have done a protected act even where they themselves were not the “victim” of the discrimination. For example, an employee who is not gay, but complains about homophobic jokes made by their colleagues has done a protected act, and if they are subsequently subjected to a detriment because of it, this would amount to victimisation. Any individual who makes a complaint in good faith will be protected, even if they were mistaken. Complaints made maliciously or in bad faith are not protected. 

Victimisation claims may be brought by employees, workers, and even people who are not employed by your business. For example, a job applicant may bring a victimisation claim if they believe they were refused a job because they had raised a discrimination claim against their previous employer.

What is a detriment?

A claimant in a victimisation claim must be able to show they were subjected to a detriment. The question asked for establishing a detriment in an Employment Tribunal is might a reasonable employee, when considering all the circumstances, believe they had been subjected to a detriment. This is a broad interpretation and a low bar for claimants to clear. Employees do not need to show that they suffered physically or economically to establish a detriment. Examples of potential detriments include:

• disciplinary action, including dismissal;
• micro-managing;
• bullying;
• ostracising; and
• not being given a raise or promotion.

An employee may be victimised even if their protected act was not the sole reason for the detrimental treatment. It is enough that the protected act had a “significant influence” on the treatment.

As an employer, you will be legally responsible for victimisation carried out by another one of your employees acting in the course of their employment. However, there is a defence available if you can show that you took all reasonable steps to prevent the victimisation.

What employers can do to prevent victimisation

Proper training for employees and managers may be an effective way to prevent victimisation at your business. Your management team should understand what victimisation is, how to spot it, and how to stop it.

Clear policies on things such as bullying and harassment, equality and diversity, whistle-blowing and grievances may also help prevent victimisation by encouraging employees to report their concerns and by setting out a clear procedure to be followed when a complaint of discrimination is made. Such policies should be well known and easily accessible at your business.

You should also work to develop a workplace culture that is supportive and encourages employees to voice their concerns. Encourage informal discussions between employees and managers to ensure that any concerns are dealt with as soon as they occur.

Finally, if you do need to take action against an employee who has committed a protected act, ensure that your reasons for doing so are well documented and are unrelated to their protected act.

Employers need to be careful when handling complaints of discrimination by employees. If one of your employees has complained about discrimination in the workplace, or if you have any questions regarding victimisation, contact our Employment Team by emailing employment@warnergoodman.co.uk or by calling 023 8071 7717