- 8 minute read
- Last updated: 28th November 2019
By law, no individual should suffer unfair or unfavourable treatment in the workplace, such as victimisation. If you believe you are being victimised at work you will need to know your legal rights and what action you can take, which could include seeking compensation from your employer for the unfair treatment you have endured. The following guide looks at the rights of employees, as well as the responsibilities of employers, in respect of victimisation in the workplace.
This article covers:
- What is victimisation at work?
- Examples of workplace victimisation
- Employee rights
- Bringing a tribunal claim
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:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
The law protects you against discrimination at work by reason of any one of these protected characteristics in relation to your employment terms and conditions, pay and benefits, promotion and transfer opportunities, training and recruitment, as well as dismissal and redundancy.
Legally, you 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.
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 you have 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.
In other words, victimisation occurs when you are subject to a detriment because you have brought, or it is believed you 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.
By understanding the legal difference between discrimination, harassment and victimisation, this will help you to identify whether or not you have been, or are still being, subjected to unlawful conduct amounting to victimisation.
Victimisation typically arises in three types of scenarios within the workplace:
- Where you have brought, or intimated, proceedings against your employer for some form of discrimination or harassment.
- Where you have agreed to give evidence in support of a discrimination or harassment claim brought by a work colleague.
- Where you have made an allegation of discrimination or harassment against your employer but not brought, or intimated, proceedings.
In theory, you can make a claim for victimisation even before making a complaint about discrimination or harassment, namely, where you are treated unfairly by your employer, or someone else at work, based purely on the belief that you have made a complaint or that you may do so in the future.
In Crossland v Chamberlains Security (Cardiff) Limited ET/1600344/2015, 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 you have 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 UKEAT/0274/18/BA).
Further, a detriment is not necessarily limited to unfair treatment during working hours. It can cover a wide range of conduct, including anything that puts you at a disadvantage within the workplace or places you in a worse position than you were before.
By way of example, a detriment could be where you are excluded from work-related social events. It can also include being deliberately excluded from conversations or activities during working hours.
Unfortunately, it is not uncommon, having made a complaint against an employer, for an employee to be labelled as a troublemaker and ostracised by both their colleagues and management, either at work and/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.
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 ET/2406088/2010, 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.
As an employee, you are legally entitled not to be treated unfairly because you make, intimate, or it is thought that you might make, a complaint for discrimination or harassment under the Equality Act 2010.
Where you give false evidence of information in relation to a complaint of discrimination or harassment, or make a false allegation, this will not be classed as a protected act in circumstances where the evidence or information is given, or the allegation made, in bad faith.
As such, where you make an allegation or submit a complaint in bad faith, and go on to suffer a detriment at work, you will not be legally protected here from any victimisation under the provisions of the 2010 Act.
In contrast, however, as long as you have acted in good faith, you should still be protected from victimisation, even if your allegations or complaint ultimately turn out to be untrue.
Under the Equality Act 2010, an employer is prohibited from subjecting an employee to a detriment at work, in other words, treating them unfairly, by reason of them having made, intimated or supported a claim for discrimination or harassment under the Act.
It is, therefore, incumbent upon an employer to prevent victimisation from occurring within the workplace, or to minimise the likelihood of this happening, in the following ways:
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 what has been alleged, what investigations have been undertaken and what action was taken in response.
Needless to say, if you believe you have been victimised at work for making a complaint about discrimination or harassment, or you otherwise fall within the provisions of the 2010 Act, and your employer has failed to take any steps to minimise the risk of victimisation or to thoroughly investigate your allegations, a tribunal is likely to take a dim view of this.
In the event that you are being subjected to a detriment, or treated unfairly, because you have done, will do, or are contemplating doing a “protected act”, you should take certain steps to protect your position, both legally and professionally.
To protect your position in the event that you subsequently bring a claim for victimisation or to help alleviate the unlawful conduct that you are being subjected to, you should show that you had exhausted other appropriate routes, including informal discussions with your employer.
Inform your line manager that you believe you are being victimised. Even with a verbal complaint you should follow this up in writing, for example, via email, to create a paper trail of what you are alleging. Needless to say, if it is your line manager that is treating you unfairly, then you should direct any complaint to another person in a position of authority.
In the event that the matter is not resolved informally, submit a formal complaint in writing, otherwise known as a grievance. You should again retain a copy of this written complaint for future reference. You should also follow any formal grievance procedures set out by your employer to avoid any delay or difficulties in the matter being dealt with.
Keep a factual account of any incidents that you think may amount to victimisation, together with a timeline, recording exactly who was involved, what happened, what was said and whether this incident was witnessed by anyone.
If necessary, not least if you are considering bringing a claim for victimisation, obtain expert legal advice from a specialist in employment law.
To make a claim to the employment tribunal you 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.
Where you are subjected to a detriment, or unfair treatment, within the workplace in consequence of bringing, intimating or supporting a discrimination or harassment claim under the Equality Act 2010, it is open to you to lodge a claim for victimisation with the employment tribunal.
However, as with most complaint procedures before the tribunal, the burden of proof will be on you, as the claimant, to prove that you have been victimised. In other words, the onus will be on you to show that a detriment has taken place in consequence of you 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.
DavidsonMorris are experienced employment law specialists offering guidance and support to employees suffering victimisation at work. We can help you to understand your rights and the legal options open to you, which may include bringing a claim against your employer.
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.