Valerie Bond
Posted on 9 Feb 2021

Discrimination and Protected Acts

In the case of Chalmers v Airpoint Ltd UKEATS/0031/19/S, the Employment Appeal Tribunal (EAT) upheld the Employment Tribunal's (ET) decision that the term "may be discriminatory" is not enough to amount to a protected act under the Equality Act 2010 for the purposes of a victimisation claim.

Protected Acts

The Equality Act 2010 (EqA 2010) protects individuals from victimisation as a result of doing a "protected act". Protected acts include:

  • Bringing proceedings under the EqA 2010;
  • Giving evidence or information in connection with any such proceedings under the EqA 2010;
  • Doing any other thing for the purposes of or in connection with the EqA 2010; or
  • Alleging (whether expressly or otherwise) that the respondent or another person has contravened the EqA 2010

The Facts

The Claimant lodged a grievance about her line manager in relation to her exclusion from two work events. In her grievance, the Claimant said that the acts "may be discriminatory", due to the fact that only she and the one other female in the office had not been invited to attend. The grievances were not upheld and the Claimant subsequently lodged a claim with the ET on the grounds of sex discrimination, harassment and victimisation.

The Claimant argued that her email expressing that her manager's treatment "may be discriminatory" constituted a protected act. This was due to the fact that, in her view, it amounted to an allegation that the EqA 2010 had been breached. The victimisation stemmed from this email being sent by the Claimant.

The ET dismissed the claims as it found that there was no protected act on which victimisation could be based. The ET took into account the fact that the Claimant referred to her line manager as "unapproachable of late and to his manner being aggressive and unhelpful", rather than making explicit reference to sex discrimination. It also took into account the fact that the Claimant was experienced in HR, articulate and well-educated and, therefore, it would have expected her to make an explicit reference to a contravention of the EqA 2010 if there had been one. An allegation that an employer has contravened the EqA 2010 must be sufficiently clear and must be capable of amounting to a breach of the EqA 2010.

The Claimant appealed to the EAT as the ET had ignored "her explicit statement" of sex discrimination.

Held

The EAT dismissed the appeal. The ET had been entitled to find that the Claimant's grievance did not amount to a protected act. It agreed that the ET was entitled to consider the Claimant's HR background and that she was well-educated and articulate. This was because it would have enabled the Claimant to take an informed view as to whether or not the acts she complained of were, in fact, discriminatory. In addition, the use of the word "may", and the failure to explicitly refer to sex discrimination, needed to be viewed alongside the fact that the Claimant had complained in clear terms about other matters.

The EAT further found that the employer had not discriminated against the Claimant in her exclusion from the events. The Claimant and the other female employee had expressed that they would not be able to attend the events and the employer had not acted in a discriminatory manner by arranging the event on a certain day or in failing to rearrange it to accommodate the two female employees.

Note for Employers

Whilst, in this case, no discriminatory acts were found or substantiated, it is an important reminder for employers to ensure that grievances are adequately investigated and any potential discriminatory acts are thoroughly considered with all parties involved. Employers need to investigate any issues with caution to ensure that they are not taken to be victimising individuals for raising concerns. Having a clear and up-to-date Grievance Policy will help ensure that all parties are fully aware of the processes and what is expected of them throughout.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Valerie Bond to discuss any issues you are facing.