Every employer should create a workplace that prevents victimisation. It's a behaviour that comes under unlawful discrimination. Meaning all employees are legally protected against it.
If an employee is subjected to victimisation at work, you could face serious costs. Like paying unlimited fines, losing staff, and business damages.
In this guide, we'll look at what victimisation is, what the law says, and how to prevent it in the workplace.
What is victimisation?
Victimisation occurs when a person is treated unfairly or subject to detriment because they made a complaint.
When an employee raises a complaint related to unlawful discrimination, it counts as victimisation. Because they're worried about complaining, they're given additional legal protection when they raise their issue.
Under the Equality Act 2010, victimisation comes under discrimination. Meaning, you cannot treat anyone unfavourably based on their protected characteristics. (For example; marital and civil partnership, pregnancy and maternity, etc.).
Every employee, worker, and job applicant is legally protected against victimisation in the workplace. They're allowed to raise issues without being treated poorly afterwards.
What is the law on victimisation in the workplace?
Under UK employment law, victimisation is a form of unlawful discrimination.
Under the Equality Act 2010, you cannot victimise or discriminate against nine protected characteristics:
- Gender reassignment.
- Marriage and civil partnership.
- Pregnancy and maternity.
- Religion and belief.
- Sexual orientation.
The Equality Act 2010 protects employees from victimisation relating to work-related discrimination.
Under the same law, workers and job applicants cannot be discriminated against. Their protected characteristics are safeguarded throughout their whole career - from their first day to the last.
This legal protection also covers harassment and victimisation. Be aware, victimisation is often confused with bullying and harassment. But they each have their own definitions, as well as legal factors.
What is a protected act?
Protected acts are the action taken when someone raises a discrimination complaint. How they act or react when making the complaint will define the type of protected act.
Under the Equality Act, protected acts are used for:
- Bringing proceedings under the Act.
- Giving evidence connected to proceedings under the Act.
- Taking any action in relation to the Act.
- Making an allegation that the Act was breached (with or without intent).
Can you raise a victimisation claim to an employment tribunal?
If an employee is victimised or discriminated against, they can raise this to the employment tribunal.
An independent employment tribunal will cover all victimisation cases. They'll allow each side to present their case during the hearing.
The tribunal will then look at if and when victimisation occurred. They’ll also go over any evidence and witness statements bought forward. After the hearing, the tribunal will decide whether the person was subjected to unlawful misconduct.
If the claim is upheld, the employer could end up with serious penalties, like paying unlimited compensation. They might also face aggravated damages and lose talented staff.
Does victimisation have to involve a protected characteristic?
Yes, a victimisation complaint must involve discrimination against a protected characteristic.
For example, an employee faces gender orientation discrimination and is then treated badly for raising the issue.
If a protected characteristic isn't involved in their complaint, it may class as bullying. It's hard to define the legal areas of bullying. And most of these claims won’t reach an employment tribunal.
However, if the bullying was related to a protected characteristic, it may count as unlawful harassment.
Is victimisation the same as discrimination?
Victimisation is not the same as discrimination.
They both have separate legal definitions; but victimisation comes under discrimination law.
Under the Equality Act 2010, there are four categories linked to unlawful discrimination:
- Direct discrimination: This is when you face unfair treatment based on a protected characteristic.
- Indirect discrimination: This is when you face unfair treatment because of a practice, policy, or rule that breaches a protected characteristic.
- Harassment: This is when you face unwanted conduct from others based on a protected characteristic.
- Victimisation: This is when you're treated unfairly because you’ve raised a complaint relating to a protected characteristic.
In the end, it all comes under unlawful discrimination. In each category, the person faces unfair treatment.
Discrimination and victimisation doesn’t only count if it happens during work hours. It counts if it happens outside of the workplace or at work-related events. The claim simply needs to relate to the workplace. For example, through work conditions or a colleague's conduct.
What is an example of workplace victimisation?
There are several situations where unlawful victimisation can derive from. Let’s look at a few:
- Employees made a complaint because of an act of discrimination or harassment - with evidence.
- Employees made a complaint because of an act of discrimination or harassment - without evidence.
- Employees made a complaint or gave evidence - on behalf of a colleague.
In reality, employees don’t have to raise a victimisation claim to their employer. They can take appropriate action and raise it straight to an employment tribunal.
Let's look at examples of workplace victimisation:
Victimisation related to sex discrimination
A manager threatens an employee with dismissal if they don’t fulfil sexual acts. The employee is worried about raising the complaint in case it makes their situation worse.
A staff-member advises them to raise it to the HR department and offers to support them during this time.
This counts unlawful victimisation; but it could also lead to a sex discrimination claim.
Victimisation related to pregnancy discrimination
A worker uses their paid time off for their IVF treatment. Their line-manager makes comments about pregnant employees being dismissed often due to capability issues.
The employee tells a senior manager about the comments. They’re now worried about being in a worse position after the baby is born.
This counts unlawful victimisation; but it could also lead to a pregnancy and maternity discrimination claim.
How to prevent victimisation in the workplace
If any employee faces unfair treatment because of a complaint, you must fix it the right way.
Employees should feel confident talking about issues they're facing at work. And you should be able to help fix them before they escalate further.
Let's look at ways to prevent victimisation in the workplace:
Manage the complaint internally.
You never know when you'll face a workplace complaint. They can come out of the blue and involve all sorts of work issues.
As an employer, try to manage the problem internally. The best place to start is your formal grievance procedure. From here, you'll be able to follow the best method for resolving their issue.
Offer equality training to managers
It's important to create a workplace that promotes equality, diversity, and inclusion.
This is best done through your managers. Offer them equality training so they'll be able to directly make a positive change.
Managers work with your staff on a daily basis. They'll be able to spot workplace discrimination quicker.
In the end, managers can help maintain a respectful workplace. So, it's beneficial to invest in them through training.
Avoid biased decision-making
If an employee was treated badly at work, they have a legal right to raise this.
But that doesn't mean you're allowed to treat them differently. As an employer, you need to avoid biased decision-making that involves employees who raise complaints.
You need to make sure they're treated fairly. And are given their employment rights; like pay, benefits, and other legal rights.
Maintain professional relations
Employers need to maintain a professional relationship with employees who raise victimisation claims.
You can’t treat them even more badly because they raised claims against you. This could lead to further discrimination claims and potentially greater punishments.
It’s not up to you to work out whether their case is true or not. Just remain professional and compliant throughout the employment tribunal process. If they tribunal believe the claim was made in bad faith, it will automatically fail.
Can you dismiss an employee who raised a victimisation complaint?
You cannot dismiss an employee who raises (or threatens to raise) a victimisation complaint. This is their right and is outlined under the Equality Act.
If you decide to dismiss them, they could raise unfair dismissal claims against you. And if their employment tribunal claim is successful, you could be forced to rehire them or pay for damages.
Get expert advice on victimisation at work with Peninsula
Every employer should build a workplace free that’s from unlawful discrimination - including victimisation.
By creating a safe work environment, you'll be able to grow strong relations with your staff. And deal with employment issues in the best manner.
If employees aren't protected against victimisation, you could end up losing staff and paying heavy fines.
Peninsula offers expert advice on victimisation in the workplace. Our HR team offers unlimited 24/7 HR employment services which are available 365 days a year.
Want more information? Seek specialist advice from one of our HR advisors. For further information, call our telephone number 0800 028 2420.