Victimisation in the workplace

Examples of workplace victimisation

• A non-disabled worker gives evidence on behalf of a disabled colleague at an Employment Tribunal hearing where disability discrimination is claimed. If the non-disabled worker is subsequently refused a promotion because of  that action, they would have suffered victimisation in contravention of the Act
• A grocery shop worker resigns after making a sexual harassment complaint against the owner. Several weeks later, she tries to make a purchase at the  shop but is refused service by the owner because of her complaint. This could amount to victimisation
• An employer threatens to dismiss a staff member because he thinks she intends to support a colleague’s sexual harassment claim. This threat could amount to victimisation, even though the employer has not actually taken any action to dismiss the staff member and may not really intend to do so

What is the difference between victimisation and discrimination?

“Victimisation” occurs when you are subjected to a detriment (poor treatment) or dismissed because you have undertaken a ‘protected act’ (please see the definition below) – to put it another way, victimisation occurs when you are punished at work because you have complained of discrimination, have brought an Employment Tribunal claim for discrimination, or you are assisting someone else with a claim for discrimination.

“Discrimination” occurs where you are subjected to a detriment (or dismissed) because of a protected characteristic that you possess. An example of discrimination at work would be if a prospective employer refuses to employ you because you are disabled.

Victimisation cases in the newspapers

• Gillingham loses race appeal over striker Mark McCammon (BBC)
• Christian doctor’s ‘victimisation’ claims rejected by Employment Tribunal (National Secular Society)
• High-flying banker called Crazy Miss Cokehead by bullying colleagues set to win millions after sexual harassment at Russian firm’s London office (The Mail Online)
• Former worker wins victimisation ruling over negative reference (Oxford Mail)

Successful victimisation cases in the Employment Tribunal

• Crossland v Chamberlains Security (Cardiff) Limited – employee victimised after failure to offer him further work because of perceived risk of discrimination claim (our analysis of the case, Employment Tribunal judgment)
• Furlong v BMC Software Limited – discussions regarding lapdances and prostitutes constituted discrimination (our analysis of the case)
• Benton v Care Needs Ltd – employer harassed and victimised employee because of IVF treatment (our analysis of the case)
• Miss N Grant v Hunter Price International Limited R2 and Mr Joshua Eden (R4) ET2410479/2018 – the Employment Tribunal held that the Claimant had been constructively dismissed, discriminated against and victimised after being subjected to intense pressure by employer, and awarded her over £70,000 in compensation (our analysis of the liability judgment here, and analysis of the remedy judgment here)
• Ms A Nartowska v Fluid Options UK Ltd ET2414596/2019 – the Employment Tribunal held that an employer’s failure to investigate allegations of sexual harassment, and its subsequent dismissal of the employee who had complained of sexual harassment, constituted acts of harassment and victimisation (our analysis of the case here)

The definition of victimisation under the Equality Act 2010

You have been subjected to victimisation under the Equality Act 2010 where the followingIf therefore occurs:

1. You undertake a “protected act” (or you are believed to have done, or that you may do, a protected act);
2. You are subjected to a “detriment” because you undertook the protected act

This is explored in more detail below.

What is a protected act?

You are protected against victimisation in the workplace only if you do one (or more) of the follow things (known as “protected acts”):

• Submit a claim for discrimination or harassment under the Equality Act 2010 or make a complaint to your employer that you’ve been discriminated against or harassed;
• Give evidence or information to help someone else who has made a claim or complaint of discrimination or harassment;
• Do any other thing which is related to the Equality Act; or
• Say that someone has done something unlawful under the Equality Act

Any complaint or claim for victimisation that you make must be made in good faith. This is extremely important – if your complaint is found to have been made in bad faith then your claim for victimisation will fail. However, you may still be protected against victimisation in the workplace even if the allegations are made by mistake or are untrue, as long as they are made in good faith.

What is a detriment?

If you are subjected to any form of “detriment” by your employer because you have done a “protected act” then you may have been ‘victimized’.

A “detriment” can be any one (or more) of the following, individually or in combination (the list is not exhaustive):

• Bullied or harassed
• Ostracised in the workplace
• Rejected for promotion
• Denied opportunities for training
• Disciplined; or
• Dismissed

Essentially, it can be any act or omission which disadvantages you or reasonably changes your position for the worse.

When are you not protected under the Equality Act?

You are not protected from victimisation under the Equality Act 2010 if your complaint is made in bad faith.

What steps can I take in order to successfully bring a claim for victimisation in the Employment Tribunal?

If you think that you are being subjected to a detriment because you have done, will do, or are considering doing a protected act then you should take action as soon as possible. Below are some examples of what you can do:

1. Try and deal with the problem internally;
2. Submit a formal written grievance complaining about the victimisation;
3. Gather evidence relating to your claim for victimisation;
4. Dealing with the grievance procedure;
5. Appeal the grievance outcome, where appropriate;
6. Go through the ACAS Early Conciliation process; and
7. Talk to a lawyer

Try and deal with the problem internally

The first thing that you can try is submitting an ‘informal’ complaint – this can be a useful means of achieving a resolution to a problem in the workplace.

Inform your line manager that you believe that you think that you are being victimised. Make sure that you put a complaint in writing (preferably by email so that there is a time and date stamp on the complaint and you can prove that it has been sent to the relevant person) and keep a copy. If you think that it is your line manager who is victimising you then make a complaint so someone else in a position of authority in your organisation.

Submit a formal written grievance complaining about the victimisation

If an informal approach to the complaint does not work then you can look to escalate the matter by submitting a ‘formal’ grievance complaining about the conduct that you are being subjected to. Submit a formal written grievance to your employer (whether to your line manager or HR), preferably by email (so you can prove that you have submitted the complaint). Be careful to:

1. Outline in the complaint the factual background of what has happened to you, when the victimisation occurred, who was involved, who witnessed the victimisation, and where it happened; and
2. Put together any evidence supporting your complaint

Gather evidence relating to your claim for victimisation

Collect evidence of the incidents that you think may amount to victimisation, including:

• You should keep a diary of the incidents of victimisation that you think that you have suffered and record exactly who was involved, what happened, and when it happened;
• Try and obtain any witness evidence that you can from colleagues who have seen or heard things;
• Keep any letters, emails, minutes of meetings etc. that you think are relevant

You may wish to make a subject access request to your employer to try and force them to provide your personal data – this can be a useful exercise to obtaining material that your employer might not have provided you with.

Do I need to comply with my employer’s grievance procedure?

You should normally take reasonably practicable steps to comply with your employer’s grievance procedure otherwise, as above, it may prevent a successful outcome to the grievance and/or mean that you are breaching the ACAS Code.

However, your employer must be reasonable in their approach to the grievance process and, if they act unreasonably, they may be in breach of the ACAS Code themselves (leading to a potential ‘uplift’ in the value of the compensation that you may seek in a victimisation claim. Equally, if your employer acts unreasonably in the grievance process then it might give you further grounds (or, at the least, evidence) for your claim for victimisation.

Should I appeal the outcome of my grievance?

The answer to this question is normally “yes” – it is generally a good idea (for the reasons outlined above) to appeal the outcome of your grievance even if you have no intention of staying at your employer and/or your view is the outcome of the grievance appeal is a foregone conclusion.

Go through the ACAS Early Conciliation process

Before you bring a claim in the Employment Tribunal you will normally need to go through the ‘ACAS Early Conciliation process’ and obtain an ACAS Early Conciliation certificate. Please click here for a link to the ACAS website.

The deadline for submitting your claim in the Employment Tribunal will normally be extended by the period of time that you were in the ACAS Early Conciliation process for (this can be a complicated calculation, however, and we recommend that you seek legal advice on this).

If you do not obtain an ACAS Early Conciliation before issuing your claim in the Employment Tribunal then the Employment Tribunal will normally not accept your claim. This step is therefore very important.

Talk to a lawyer

Obtain specialist advice from a qualified person – you can either consult a lawyer directly (click here to contact us to discuss) or make an appointment with the Citizens Advice Bureau to obtain initial advice

Is it easy to make a claim for victimisation in the Employment Tribunal?

No claim in the Employment Tribunal is “easy” – Employment Tribunal claims are time-consuming, stressful, and take a little while to conclude. However, you have a decent chance of succeeding with your claim for victimisation if:

1. you have reasonable prospects of success with a claim for victimsation (see the definition of victimisation under the Equality Act);
2. you are willing to put in the effort to obtain the necessary evidence to support your claim (see action you can take if you think that you’re being victimised); and
3. you are willing to put the time, effort, and money to obtain a result in the Employment Tribunal (whether this is to obtain a settlement or to bring an Employment Tribunal claim)

However, before bringing a claim for victimisation in the Employment Tribunal you may wish to consider trying to settle your potential claim with your (former) employer (see Negotiating an exit if you’ve been victimised).

Negotiating a settlement if you’ve been victimised in the workplace

If you have been victmised in the workplace then you have two means of seeking redress:

1. You can bring a claim for victimisation in the Employment Tribunal (see Making an Employment Tribunal claim); and/or
2. You can try and negotiate a settlement

We would normally recommend that you try and seek a settlement of your victimisation claim (via a settlement agreement) before pursuing litigation in the Employment Tribunal.

If you have prospects of success with a claim for victimisation then a successful settlement negotiation would normally involve you receiving a sum of money as compensation for termination of your employment. It may also involve you leaving your employment (but, if so, we would normally expect you to receive an increased amount of compensation to reflect the stress and losses that you might suffer as a result of the termination of your employment.

It is common for a settlement package to be offered by an employer if you have filed a grievance for a number of reasons, not least the fact that once you have formally filed a grievance with your employer there is a strong chance that the relationship with your employer has broken, or will break, down; this is regardless of the outcome of the grievance process.

Negotiating an exit package in these circumstances is a highly strategic situation and one that normally requires a delicate tactical touch – the success of the settlement negotiations will depend upon how you approach the negotiations and the potential strength of your claim. We therefore recommend that you seek legal advice on the strength of your claim, the potential value of your exit package, and on the approach that you should take to the negotiations; equally, seeking legal advice will allow you to avoid missteps in the negotiations which could weaken your exit negotiations.

Making an Employment Tribunal claim for victimsation

If you want to make an Employment Tribunal claim for victimisation then you must do the following:

• Make your claim within three months of the last date of victimisation (this is also known as the “limitation date”). The last date of discrimination can often be difficult to pinpoint so you must be extremely careful that you do not fall outside of the three-month period
• Since May 2015 you must also apply to ACAS for a certificate of early conciliation – if you fail to do so then you will not be able to bring your claim in the Employment Tribunal (unless very limited exceptions apply)
• Gather enough evidence to allow you to prove your case in the Tribunal – this includes both documentary evidence and, if applicable, witness evidence.

It’s important to note that (unlike, for example, unfair dismissal claims) you don’t need to have worked for your employer for any particular length of time to make a claim for victimisation – you have the right to do this from “day one”.

Do I need to resign from my job if I have been victimised?

You don’t necessarily always need to resign from your job (it is not essential to resign from your job in order to pursue a claim for victimisation in the Employment Tribunal, although it would be necessary to resign from your job to pursue a claim for constructive dismissal). However, you may wish to consider resigning from your job if:

1. You leaving your job is a condition of entering into a settlement agreement with your employer (see Negotiating a settlement if you’ve been victimised in the workplace);
2. You don’t think it’s possible for you to keep working at the company (for example, if you think your employer’s behaviour towards you has destroyed any trust and confidence that you had in your employer); or
3. Resigning from your job lends weight to your claim for victimisation

We would normally recommend waiting to resign from your job until a settlement is agreed or you have no other option but to do so, and we would also always recommend getting advice from a specialist employment solicitor on your options before resigning.

What compensation can you receive in a claim for victimisation?

If you are successful with a claim for victimisation in the Employment Tribunal then you can normally pursue the following kinds of compensation:

1. Any loss of earnings that you have suffered as a result of the victimisation (for example, if you’ve lost out on a bonus or you have had to resign because of the victimisation);
2. Any injury to feelings that you have suffered due to the victimisation;
3. Any personal injury that you have suffered (for example, if you have suffered depression because of the victimisation);
4. Aggravated damages (this is a rare award and is normally relevant if there has been particularly bad behaviour on your employer’s part)

Examples of compensation awarded in victimisation claims

We have included below some examples of awards of compensation that have been made by the Employment Tribunal where a claim has succeeded with a claim for victimisation:

• Miss N Grant v Hunter Price International Limited & ors ET2410479/2018 – in this claim the Employment Tribunal awarded the Claimant £73,852.85 after she was successful with a claim for victimisation (among other claims) (see our analysis here, and the remedy judgment here)
• Miss Munro v The Co-operative Ltd ET/3200668/2016 – in this claim the Employment Tribunal awarded the Claimant £29,864.68 as compensation after she was successful with her claims for discrimination, sexual harassment, and victimisation (see our analysis here, and the judgment of the Employment Tribunal here)
• Ms S Alrajjal v Media 10 Ltd ET/3200154/2016 – in this claim the Employment Tribunal awarded Ms Alrajjal £11,504.09 as compensation for her claims for sexual harassment and victimisation (see our analysis here and the decision of the Employment Tribunal here)