What is victimisation?

Legal background

The law relating to victimisation is set out in the Equality Act 2010 (EA) . It states that an act of unlawful victimisation will occur when a worker is subject to detrimental treatment by their employer because they’ve done, or are threatening to do, a protected act.

The EA sets out the four protected acts. They arise where a worker:

• brings legal proceedings under the EA against their employer, another worker and/or a third party, i.e. they issue a tribunal claim for discrimination
• gives evidence or information in connection with legal proceedings that are brought under the EA , e.g. they are a witness in a tribunal claim for discrimination brought by another, or a former, worker
• alleges that their employer or another person, such as a manager or a colleague has contravened the EA in some way
• does any other thing which is related to the EA .

Some examples

Detrimental treatment can be act or an omission. It can take the form of bullying, harassment or the individual being labelled a trouble maker. It could also include a worker being: (1) denied a promotion; (2) demoted from their current job role; (3) ostracised in the workplace; (4) refused a training opportunity; (5) disciplined; or (6) being subject to disciplinary action up to and including dismissal.

Risk. Threats to do any of these things will be acts of victimisation too.

Post-employment matters

Victimisation can also arise post-employment. An example of this would be where an employer refuses to give a former employee a reference because that individual brought or threatened a tribunal claim for discrimination or because they made an allegation of discriminatory treatment during or after their employment.

Note. Giving a bad or untrue reference can also amount to an act of victimisation on the employer’s part.

A clear link

In order for victimisation to arise, there must be a clear link between what the worker did and the detrimental treatment they’ve experienced.

However, the detrimental treatment doesn’t need to be linked to one or more of the protected characteristics which are set out in the EA , e.g. disability, sex or age.

Tip 1. A complaint of victimisation must be “made in good faith”. This doesn’t mean that the allegation must be true; it means that the worker must be acting honestly or have a reasonable belief that they are acting honestly. If you can show that they’ve lied or deliberately sought to mislead the tribunal about the alleged victimisation their claim will ultimately fail.

Tip 2. The right to bring a claim for victimisation arises from day one of employment - there is no qualifying period. A claim must be brought within three months of the act of victimisation, or the last in a series of acts of victimisation.