DISCRIMINATION - 25.02.2021

Reference to possible discrimination wasn’t a protected act

To be protected against victimisation under the Equality Act 2010, an employee must do a “protected act”. Why was an employee’s email held not to be a protected act?

Victimisation complaint

In Chalmers v Airpoint Ltd and others 2020 (see Follow up ), C, who worked in HR, submitted an email grievance complaining about her manager’s aggressive manner. She also wrote that she’d been excluded from a Christmas night out and stated it “may be discriminatory” . When C later brought a victimisation claim, the tribunal found that her grievance didn’t disclose an allegation that she had been discriminated against on the ground of sex and so it wasn’t a “protected act” .

No protected act

C appealed, but the Employment Appeal Tribunal (EAT) held that the tribunal was entitled to find that the words used by C in her grievance weren’t a protected act - she didn’t allege sex discrimination and the word “may” signified doubt. As C was well-educated and experienced in HR, she was someone who had she wanted to assert sex discrimination would have done so.

Pro advice. The EAT took account of C’s education and background in this case. Were these facts different, the grievance might well have amounted to a protected act. Investigate any allegation of discrimination and don’t treat the employee detrimentally as a result.

Chalmers v Airpoint Ltd and others

The email only said acts “may” be discriminatory and didn’t allege sex discrimination. The employee had HR experience so was capable of asserting sex discrimination.

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