Workplace discrimination is a term that often hits the headlines.
Many cases follow the same pattern. An employee has been demoted for gender reasons, an employee is mistreated upon return to work, and so forth.
The thing is, discrimination is a broad term. In fact, there are four types of discrimination:
- Indirect discrimination
- Direct discrimination
What is victimisation?
Victimisation, the topic of today’s post, occurs when an employee suffers less favourable treatment as a result of claiming about an act of discrimination or considering making a complaint about discrimination.
Claims made in relation to discrimination are referred to as ‘protected acts’. Protection is afforded not only to the person who has made the claim but also to any witnesses of another person’s claim. The exception is that there is no protection for an employee who has raised a complaint in bad faith in malicious circumstances. Any claim of discrimination is at risk of progressing to a claim for victimisation if employers do not take steps to combat this.
A case for caution
Employers should be careful when dealing with an employee that has raised a Tribunal claim that wasn’t against them that they do not leave themselves open to a claim of victimisation. It can be off-putting if an employee reveals or it comes to your attention that they took an Employment Tribunal claim against a previous employer. However, treating this employee differently would amount to victimisation, as can be seen in the case of Bouabdillah v Commerzbank AG.
Bouabdillah was dismissed when her employer became aware that she had taken a claim against her previous employer. Commerzbank’s explanation amounted to the fact that they did not dismiss her as a result of the previous claim, but because she had not been upfront and honest about it. The Tribunal did not accept this reasoning and found that the heart of the reason for dismissal was due to the claim taken against her previous employer.
Similarly, victimisation can extend to the recruitment process. Employers should think twice before withdrawing an offer of employment based on a reference that highlights that the applicant had taken a claim to an Employment Tribunal.
Likewise, if an employer is required to give a reference to an employee who has made a complaint of discrimination, they should do so with caution. In the case of Chief Constable of West Yorkshire v Khan, it was found that Khan had suffered victimisation as a result of the Chief Constable’s refusal to give a reference. This is despite the fact that in this circumstance the reference would have reduced the likelihood of a job offer.
Employers should bear in mind that an employee’s claim for discrimination does not have to be successful for them to claim victimisation. It’s not unusual for a victimisation claim to succeed where the claim for discrimination was found to be unfounded. When dealing with an internal complaint of discrimination, employers should investigate the claim as thoroughly as possible through their internal grievance procedures and give an adequate response to the employee.
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