ET Failed to Consider Context in Victimisation Claim, EAT Rules

The Employment Appeal Tribunal (EAT) has upheld a woman’s appeal against the dismissal of her complaint of victimisation, finding that the Employment Tribunal (ET) had adopted too narrow a definition of what could constitute a protected act and had not sufficiently analysed the context in which the complaint that was said to be a protected act was made.

The woman had worked for a pharmacy business since 2001. In 2018 she moved to another of the business’s stores, where she was the only black employee. The following year, when calling out for the key to the controlled drugs cabinet, she was told by a pharmacist to stop shouting. She brought a grievance in which she claimed that the pharmacist treated her differently from the other staff. Notes from the grievance hearing indicated that, in complaining about the incident when she had been accused of shouting, she had made a reference to it being connected to racial stereotyping.

The COVID-19 pandemic had a significant impact on the woman’s employer and she was eventually made redundant. She subsequently claimed successfully before the ET that she had been unfairly dismissed. However, the ET rejected her claim that she had been victimised because she had complained of race discrimination, finding that she had not made an allegation of discrimination and had therefore not done a protected act.

She appealed the dismissal of her victimisation claim to the EAT, arguing that the ET had erred in ruling out that a race discrimination complaint had been made without taking the step of examining the context.

The EAT considered that case law established that an allegation need not state explicitly that an act of discrimination has occurred. All that is required is that facts are asserted which are capable in law of amounting to an act of discrimination. The EAT noted that the woman had told the ET that she had spoken in the same tone as other colleagues when calling for the key. That should have alerted the ET to the question of why there was a difference in treatment. The law clearly required the ET to consider context: while the ET had found facts that demonstrated the context, it was not clear that it had analysed those facts in terms of how her complaints would have been understood by her employer.

The woman was the only black employee at the store, she had complained of being treated differently as part of a grievance, and the grievance notes raised as an issue that shouting might be connected to a negative racial stereotype. Those facts provided a broad context that the ET was required to consider and analyse. It should have taken account of those factors and asked what the employer would have understood the woman’s complaint to mean from the information she had provided.

Upholding the appeal, the EAT concluded that the claim should be remitted to the same ET, if practicable.