By law, no individual should suffer unfair or unfavourable treatment in the workplace.
In this guide for employers, we explain your obligations to treat workers fairly and how to avoid victimisation issues at work. While the mistreatment may not be intended, it can result in costly tribunal claims if the employer has failed to protect the individual from unlawful victimisation at work.
What is victimisation at work?
Victimisation is when someone is subject to a detriment because they have brought, or it is believed they are about to bring, or support, a claim relating to either disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, as well as sex and sexual orientation.
Under the Equality Act 2010, employees have the right not to be discriminated against, or treated less favourably, within the workplace in relation to a number of protected characteristics, namely:
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
The law protects them against discrimination at work by reason of any one of these protected characteristics in relation to their employment terms and conditions, pay and benefits, promotion and transfer opportunities, training and recruitment, as well as dismissal and redundancy.
Workers are also protected from other types of prohibited conduct under the 2010 Act, in particular, from being harassed or victimised, either because of a protected characteristic or a claim related to a protected characteristic.
Protection applies throughout the employment lifecycle, from recruitment through to dismissal.
In everyday language “victimisation” is often used interchangeably with words like harassment or bullying, but in the context of the 2010 Act it is statutorily defined as its own specific category of prohibited conduct.
Unlike harassment that, broadly speaking, refers to unlawful conduct related to a protected characteristic, victimisation specifically refers to being treated unfairly because someone has complained about discrimination or harassment, or have supported someone else in making this type of complaint.
By way of further comparison, harassment is defined under section 26 of the 2010 Act as follows:
“A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic, [or of a sexual nature], and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”
In contrast, victimisation is defined by section 27 of the 2010 Act as follows:
“A person (A) victimises another person (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act.”
A “protected act” is defined as follows:
- Bringing proceedings under the 2010 Act
- Giving evidence or information in connection with proceedings under the Act
- Doing any other thing for the purposes of or in connection with the Act
- Making an allegation, whether or not express, that A or another person has contravened the Act
In short, the Equality Act 2010 provides that an employee will be victimised if they are treated unfairly because they have carried out a protected act.
Examples of workplace victimisation
Victimisation typically arises in three types of scenarios within the workplace:
- Where someone has brought, or intimated, proceedings against their employer for some form of discrimination or harassment.
- Where someone has agreed to give evidence in support of a discrimination or harassment claim brought by a work colleague.
- Where someone has made an allegation of discrimination or harassment against their employer but not brought, or intimated, proceedings.
In theory, employees can make a claim for victimisation even before making a complaint about discrimination or harassment, namely, where they are treated unfairly by their employer, or someone else at work, based purely on the belief that they have made a complaint or that they may do so in the future. In Crossland v Chamberlains Security (Cardiff) Limited, the employment tribunal upheld a claim for victimisation where reasonable adjustments had not been made to accommodate the claimant’s disability, namely, Type 1 diabetes, because of a concern by his employer that if offered work at a different site, the claimant may, at some point in the future, submit a claim for discrimination.
Equally, at the other end of the spectrum, where someone has actually submitted a discrimination or harassment claim in the employment tribunal, continuing with tribunal proceedings is as much a protected act as bringing proceedings in the first place (Aston v The Martlet Group Ltd).
A detriment is not necessarily limited to unfair treatment during working hours. It can cover a wide range of conduct, including anything that puts someone at a disadvantage within the workplace or places them in a worse position than they were before. By way of example, a detriment could be where someone is excluded from work-related social events or being deliberately excluded from conversations or activities during working hours.
It is even possible for an employee to continue to be subjected to unfair treatment, even having been dismissed, for example, by being refused a reference or by being given a poor reference. In Benton v Care Needs Ltd, the employment tribunal upheld a claim for victimisation where the claimant’s employer had failed to provide her with a payslip by reason of her having brought a claim for sex discrimination and harassment arising our her IVF treatment and subsequent miscarriage.
In practice, employers should take care when someone has made a complaint to not to ‘label’ the individual as a troublemaker and to ensure that are not subsequently ostracised by colleagues or management, either at work or socially.
That said, most reported claims for victimisation are based on scenarios where the employee has been denied an opportunity at work or subjected to a specific detriment, for example, missing out on a training opportunity, missing out on promotion, or even being disciplined or dismissed.
Dealing with complaints of victimisation
If an employee brings a complaint of victimisation, you have to take the allegations seriously. Typically, the complaint would be in the form of a grievance. You should carry out a thorough investigation to determine the facts before taking any action. If the matter escalates to the tribunal, the process you follow will be scrutinised and you may be penalised for failing to meet the required standards.
Recording keeping will be critical. Managers should be trained and capable of handling such complaints. This will include effective record keeping, such as documenting discussions and retaining emails and messages with the employee.
To make a claim to the employment tribunal, the employee will need to do so within three months less one day of the last date of victimisation. However, where there have been a series of acts that constitute the alleged unfair treatment, it can be difficult to pinpoint any final incident.
As with most complaint procedures before the tribunal, the burden of proof will be on the claimant to prove that they have been victimised. In other words, the onus will be on them to show that a detriment has taken place in consequence of them carrying out a protected act.
As such, there must be a clear connection between you bringing, intimating or supporting proceedings for discrimination or harassment, and the unfair treatment to which you have been subjected.
First and foremost, therefore, you must be able to demonstrate either that you have made a complaint, or supported someone else in a complaint, or that you have been victimised because it was thought that you might do so. Needless to say, the latter scenario can be difficult, albeit not impossible, to prove.
Having an independent witness can often prove to be invaluable in helping to determine the outcome of a victimisation case, not only in relation to events preceding any complaint, or suspected complaint but also to what extent you were treated unfairly in consequence of this.
The employee will also need to show that they have exhausted all appropriate routes before bringing a claim, such as having informal discussions with their manager or bringing a formal grievance.
Advice for employers
Employers have to take action to prevent victimisation from occurring within the workplace, or to minimise the likelihood of this happening. This could include:
- By promoting an open working culture and communication – ongoing communication with your workforce can help to identify and address issues as they arise before they escalate. If people feel comfortable raising concerns before they escalate, they can often be dealt with more easily and in a constructive way.
- By providing suitable training – employers should provide both senior management and other staff with suitable diversity training. This should include the meaning of discrimination, harassment and victimisation, as well as what constitutes unlawful conduct under the Equality Act 2010.
- By dealing with grievances efficiently and promptly – employers should always treat any grievances seriously, recording in writing any allegations made by an employee and investigating these thoroughly to see if there is any merit to the complaint so that appropriate action can be taken.
- By keeping accurate written records – employers should keep accurate written accounts of discussions and allegations, what investigations have been undertaken and what action was taken in response.
Need assistance?
DavidsonMorris are experienced employment law specialists offering guidance to employers preventing or dealing with victimisation at work. We can help you to understand and meet your obligations, while promoting positive workforce relations.
In some circumstances, it may be appropriate and mutually beneficial to the employer and employee to consider bringing the employment contract to an end with a settlement agreement on terms agreed by both parties. We have extensive experience of leading on settlement negotiations and drafting contractual terms that support your commercial and reputational interests.
If you have a question or need help with misconduct at work, contact us.
