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Protection from protection – a conflicting stance on victimisation claims

Joe Nicholls - DAS Law

  1. 21 November 2013
  2. Business
  3. 0 comments
Victimised employee?

While those who scrupulously run their own businesses will often do anything they can to ensure that their employees are properly looked after, what happens when employees appear to be making frivolous claims of having been unfairly treated or discriminated against at work? Is it possible to dismiss an employee for seemingly taking such an approach?

The law governing victimisation is unambiguous and succinct. In a nutshell, section 27 of the Equality Act 2010 makes it unlawful for an employer to subject any worker to a detriment, such as dismissal or other adverse treatment, because they have brought or may bring proceedings against them for discrimination.

We say unambiguous and succinct because victimisation itself is a very narrow claim and, for that reason, is very rarely successfully pleaded in the Employment Tribunal (ET) and even less so in the Employment Appeal Tribunal (EAT). Despite this, the assertion by claimants who consider themselves to have been victimised is relatively common. It is a common misconception that to be “victimised” means to be treated badly and to perceive oneself as a victim.

So what happens when the employer feels like the victim? This question is not without a sense of irony, given that the Equality Act was enacted to protect workers from experiencing unfair treatment for seeking redress in the Tribunal forum. The recent EAT Judgment of 5 June 2013 to some extent answered that very question. In Woodhouse v West North West Homes Leeds Limited 2013 UKEAT 0007/12, the EAT considered whether dismissing an employee for raising ten internal grievances and seven ET claims over four years was lawful.

None of Mr Woodhouse’s claims and grievances against his employer were successful or upheld and almost all were found to have lacked “any proper evidential basis or grounds for his suspicion”, but crucially he was not found to have brought them in bad faith. Despite the fact that the employer claimed that the dismissal was fair on the basis that Mr Woodhouse’s repeated actions had caused a complete breakdown in trust and confidence in the relationship, which was upheld in the ET in first instance, the EAT held  that the dismissal was an unlawful act of victimisation. Mr Woodhouse was therefore successful.

The lesson to be learned is simple; that it is not about the perception of being a victim, but that dismissing a worker for bringing a claim is prohibited. As explained, the law governing victimisation is unambiguous and succinct.

What this doesn’t address however, is whether section 27 is correct in being so black and white, so restrictive. Employers will no doubt sympathise with Mr Woodhouse’s employers who would have gone to great expenses and time in investigating and defending his grievances and claims. Ultimately, until there is a change to the law, employers should take great care, and if possible, take legal advice prior to dismissing an employee for raising grievances and issuing claims, no matter how frustrating the situation.

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