What is victimisation?
Unlawful victimisation occurs when an employer subjects a worker to a “detriment” because he or she has done a protected act. A protected act covers almost anything a worker has done (or which the employer believes has been done, or may be done) by reference to our anti-discrimination legislation, now contained in the Equality Act 2010. Detriment has been broadly interpreted to cover pretty much any kind of unfavourable treatment.
Typical examples would include dismissing someone because they have complained about sexual harassment in the workplace, or withholding a reference because a worker has brought race discrimination proceedings. However, recent cases have shown that the protection is much wider than that.
Is protection confined to the duration of the employment relationship?
The short answer is no. A worker will still be protected from victimisation by his current employer, even if the protected act was done in relation to a former employer. An employment tribunal decision involving Commerzbank has provided a recent illustration. In that case a banker was found to have been victimised because of sex discrimination proceedings she had brought against a former employer, which came to light after she had started her new job.
Prior to the Equality Act it had become clear that a worker could also be victimised by a former employer – for example by withholding a reference for a new job. This principle has been thrown into doubt by some confusing wording in the Act but the better view is that it has not changed anything in this respect.
Must the protected act be the only reason for the detriment?
It has been understood for a long time that the fact the employer was acting from mixed motives will not be enough to see off a victimisation claim. The most vivid illustration of this principle comes from a case involving a worker at a kosher bakery. He was dismissed for using non-kosher jam to flavour a cake, an act that was superficially one of gross misconduct. However, the employment tribunal discovered that similar offences had been overlooked in the past, and decided that his harsh treatment was at least partly attributable to the fact that he had previously brought proceedings for disability discrimination against the employer.