In Mrs Mahal (nee Buttar) v The Commissioner of Police of the Metropolis, a Metropolitan Police supervisor was awarded more than £39,000. This followed successful claims of victimisation at work and failures to make reasonable adjustments.

Read on as we examine the case facts and the Employment Tribunal’s judgment. We then look at the relevant UK employment law in more detail and outline the steps others affected can take.

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What Happened to the Met Police Supervisor?

Mrs Mahal (the “Claimant”) began working for the Metropolitan Police Service (the “Respondent”) in January 2003. At the time of the events the Tribunal considered, she was employed as a Communications Supervisor at Bow. She was also a representative of the Public and Commercial Services union.

The dispute originated from a grievance raised by another employee in 2016. The Claimant attended a grievance meeting as that employee’s union representative. In February 2017, she subsequently emailed the grievance assessor about several concerns relating to duty officer J Wood.

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Her email referred to numerous complaints concerning alleged bullying, intimidation and overbearing line management. She also referred to previous accusations of racism and said some employees were frightened to speak out because they feared further bullying. She additionally described a perception that members of staff from ethnic minority backgrounds could be targeted.

The Tribunal acknowledged that some of the Claimant’s comments might have appeared wide-ranging and blunt. However, she made them while carrying out her responsibilities as a trade union representative and raising concerns about the treatment of employees.

The Duty Officer Complained About the Allegations

J Wood subsequently became aware of the Claimant’s comments and reported her to the Directorate of Professional Standards in September 2017. The issue later resurfaced, and on 1 December 2018 the Claimant was served with a Notice of Investigation.

The notice alleged that she’d bullied and harassed an employee through unreasonable and unsubstantiated criticism. It specifically referred to emails in which the employee had allegedly been described as a bully and racist.

The consequences were potentially serious. The Claimant was facing an investigation into allegations that could have resulted in disciplinary action and potentially dismissal. The Tribunal found that her employment was therefore insecure while the Notice of Investigation remained outstanding.

This became central to her successful victimisation claim because the Tribunal had to determine whether the investigation was connected with the discrimination allegations she had previously raised.

Why Was The Claimant’s Email a Protected Act?

Under section 27 of the Equality Act 2010, victimisation can occur where someone is subjected to a detriment because they carried out a protected act, or because another person believes they have done or may do one.

Protected acts can include bringing proceedings under the Equality Act, providing evidence or information connected with proceedings, doing something for the purposes of the Act, or alleging that another person has breached it.

An employee therefore doesn’t have to start formal Employment Tribunal proceedings before protection can apply. Raising an allegation of unlawful discrimination within the workplace can potentially be enough.

In the Claimant’s case, there was no dispute that her February 2017 email constituted a protected act. Her references to previous accusations and perceptions of racism brought the email within the protection provided by discrimination legislation.

Does the Original Discrimination Allegation Have to Be Proven?

A key feature of victimisation at work is that the original discrimination allegation generally doesn’t have to be proven before protection can arise.

An employer cannot necessarily justify detrimental treatment by arguing that the employee’s original discrimination complaint was incorrect or couldn’t ultimately be substantiated. The protection is intended to allow people to raise discrimination concerns without subsequently being punished simply for doing so.

There is an important exception. Section 27 of the Equality Act provides that false evidence, false information or a false allegation will not amount to a protected act where it’s given or made in bad faith. That exception didn’t apply to the Claimant, though.

Why Did the Victimisation at Work Claim Succeed?

The Tribunal considered why the Respondent served the Claimant with the Notice of Investigation. It needed to explain its decision separately from the protected act she’d carried out.

The Tribunal found that it failed to do so. The Notice of Investigation was based upon statements contained within the Claimant’s protected email, including allegations concerning racism. As a result, the Tribunal concluded that serving the notice amounted to unlawful victimisation.

The seriousness of the action was particularly significant. The Claimant was not merely subjected to an uncomfortable discussion or informal criticism. She was formally investigated over allegations that could potentially have led to disciplinary sanctions and dismissal.

The Notice of Investigation was eventually withdrawn in February 2019. This came following advice that no further action should be taken if the Claimant’s comments had been made solely while acting as a union representative.

The Respondent’s own Discrimination Investigation Unit subsequently concluded that serving the notice could constitute victimisation, although it considered that withdrawing it had resolved the issue. The Employment Tribunal nevertheless upheld the victimisation complaint.

What Did the Employment Tribunal Decide?

The Claimant brought several claims, yet not all of them succeeded. That said, the Tribunal upheld her claim that serving the Notice of Investigation amounted to unlawful victimisation. She also succeeded with three claims concerning failures to make reasonable adjustments.

Following the remedy hearing, the Claimant was awarded £39,033 in total. This consisted of a £25,000 composite award for injury to feelings, together with £14,033 in interest.

What Is Victimisation at Work?

Under section 27 of the Equality Act 2010, victimisation occurs when one person subjects another to a detriment because they have carried out a protected act. Protection also applies where the person responsible believes the individual has carried out, or may carry out, a protected act.

What Are Some Examples of Victimisation in the Workplace?

Victimisation can take many different forms. Acas explains that it may involve someone being treated worse than before, or having their situation worsened because they were involved in a discrimination or harassment complaint.

For example, an employee could face disciplinary proceedings because they complained about discrimination. Mrs Mahal’s case shows how an investigation itself can be a detriment when the decision to investigate is made because of a protected act.

Other examples could include excluding an employee from training, promotion opportunities or important projects after they raise a discrimination complaint. A manager might also subject the employee to unjustified criticism, hostility or other negative treatment because they complained.

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Victimisation can also involve supporting another person. An employee who gives evidence in a colleague’s discrimination complaint may carry out a protected act. Their employer should not penalise them for providing that support.

However, making a discrimination complaint doesn’t give an employee immunity from legitimate management or disciplinary action. Employers can still investigate genuine misconduct. The crucial question is why the negative treatment occurred and whether the protected act materially influenced it.

What Should You Do if You Experience Victimisation at Work?

If someone believes they’re experiencing victimisation in the workplace, it can be helpful to create an accurate written record. Record when they initially raised the discrimination issue, what was said and who received their complaint.

They should also record the treatment that followed, including relevant dates, conversations and management decisions. Keep emails, letters, messages and meeting notes where they’re entitled to retain them. This evidence could help demonstrate whether there is a connection between their protected act and subsequent treatment.

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Where appropriate, they may wish to raise the issue informally with their manager or HR department. If this doesn’t resolve the situation, submitting a formal grievance may be appropriate. The grievance can identify the original protected act, explain the treatment that followed and set out why they believe the two are connected.

Consider Obtaining Employment Law Advice Early

Employment law advice can be particularly important where the alleged victimisation involves disciplinary proceedings, dismissal, demotion, or another significant detriment. A solicitor can consider whether one’s original complaint or action may constitute a protected act and whether there is evidence linking it with the treatment that followed. They can also advise on internal grievances and the possibility of bringing an Employment Tribunal victimisation claim.

Taking advice early can also be important because Employment Tribunal claims are subject to statutory time limits. Employees shouldn’t assume that an internal grievance, disciplinary procedure or appeal automatically stops the relevant limitation period from running.

Acas Early Conciliation will also usually need to be considered before Employment Tribunal proceedings are issued and can affect how the applicable deadline is calculated. Obtaining advice promptly can therefore help individuals understand both their potential claim and the relevant procedural requirements.

Employees Should Be Able to Raise Discrimination Concerns Safely

The Equality Act’s victimisation protections are intended to ensure that people can raise discrimination concerns without being penalised for asserting their rights.

Mrs Mahal’s case demonstrates why those protections matter. She made allegations involving racism while acting as a trade union representative. The Tribunal found that her email was protected and that the Met hadn’t established an explanation for subsequently investigating her that was separate from that protected act. The Tribunal consequently upheld her claim for victimisation at work.

Experienced Victimisation at Work? Get Help with Redmans

If you believe you have experienced victimisation at work after raising concerns about discrimination, contact Redmans Solicitors today. Our specialist employment solicitors can assess your circumstances, explain whether your actions may constitute a protected act and advise you on your possible next steps.

If you may have grounds to pursue a victimisation claim, we can also advise you about the Employment Tribunal process, the evidence that could support your case and the applicable time limits.

To get started on your journey with us today, please:

• Phone us directly on 020 3397 3603
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