An individual who raises an allegation of discrimination is protected against suffering any detriment as a result of having raised that allegation under the laws of victimisation. But if an employee is dismissed for accusing their employer of racism, is that an act of unlawful victimisation? Not always, according to the Court of Appeal in this recent case.
In the unusual case of Pasab Ltd t/a Jhoots Pharmacy v Woods, Mrs Woods, who was white Irish and a practising Muslim, worked at Jhoots pharmacy. The management and some other employees were adherents to the Sikh religion, although the workforce as a whole was multi-faith and multi-racial. There were a number of issues between Mrs Woods and management, which culminated in a meeting between Mrs Woods and the pharmacy manager in which it was alleged that Mrs Woods said that the pharmacy was “a little Sikh club that only look after Sikhs.” Mrs Woods was dismissed shortly after, ostensibly for poor time keeping and failure to follow procedures but, in reality, because she had made that comment which the Head of HR, Mrs Jhooty, considered to be racist.
Mrs Woods claim of victimisation was upheld by the Employment Tribunal. The Tribunal found that she had made the ‘little Sikh club’ comment; that it was an allegation of less favourable treatment on the grounds of religion and that, because she was dismissed for having made that complaint, it was an act of unlawful victimisation.
On appeal – no victimisation
The Tribunal’s decision was overturned by the Employment Appeal Tribunal and the Court of Appeal who found that Mrs Woods had been dismissed, not because she had made a complaint of discrimination, but because Mrs Jhooty believed her remark to have been racist.
Whether someone has been subjected to a detriment as a result of having done a protected act requires consideration of why the alleged discriminator acted as they did. What, consciously or unconsciously, was their reason for the detrimental treatment? The Court of Appeal found that the alleged discriminator dismissed Mrs Woods, not because she had made a comment which alleged unlawful discrimination, but because the alleged discriminator believed Mrs Woods made a racially prejudiced comment. Accordingly, her dismissal was not found to be an unlawful act of victimisation. The Higher Courts, therefore, confirmed that the proper approach is to consider why the alleged discriminator acted (consciously or unconsciously) as they did.
On the face of it, this approach opens the doors for employers to argue that employees have been dismissed, not for making allegations of discrimination, but for the manner or circumstances in which those allegations were made. However, the employer’s conduct and thought process will be scrutinised carefully.
These cases can involve fine distinctions and employers would be well advised to avoid relying on tribunals examining the personal motivation of the alleged discriminator divorced from the overall circumstances. Take, for example, the case of The Trustees of Mama East African Women’s Group v Dobson (2005) which concerned whistleblowing. Employees who blow the whistle on wrongdoing at work are similarly protected from suffering any detriment or dismissal as a result of having done so. Mrs Dobson made an allegation of ill-treatment of children at a crèche, which was investigated and not upheld. She was subsequently dismissed for making false allegations. She won her case for unfair dismissal, and that decision was upheld by the Employment Appeal Tribunal (EAT). Although the employer tried to argue that the reason for the dismissal was not because the claimant had made the allegation of ill treatment, but because the employer had believed the allegation to be false, the EAT refused to draw such a distinction and accepted Mrs Dobson’s argument that it cannot be right for an employer to assert a non-tainted reason for the dismissal and yet, in the social context of the legislation, avoid its connection to the protected act. The case shows that similar cases can result in very different outcomes