Protected Acts, Detrimental Treatment and Victimisation – Guideline Ruling

It is your right to lodge Employment Tribunal (ET) proceedings if you feel that you have been mistreated at work and, whether you win or lose, you are also entitled to expect that you will not be detrimentally treated for doing so. That principle was very much to the fore in a guideline…

Mar 30, 2022

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The case concerned a black British IT worker who had twice in the past launched ET claims against his employer. He had raised serious allegations of race and disability discrimination and victimisation against his line managers and the director of the small unit in which he worked. In both sets of proceedings, which were lodged about six years apart, his complaints were rejected by ETs.

Shortly after his return to work following the second set of proceedings, his employer suspended him pending an investigation by an external HR professional. He was subsequently dismissed on the basis that the relationship of trust and confidence between him, the employer and his colleagues had deteriorated to the point where it was unviable to continue any employment relationship.

The worker again complained to an ET, alleging that he been victimised. That, he argued, took the form of being subjected to detrimental treatment for his protected acts in instituting the previous ET complaints. However, in rejecting his claim, the ET found that the reason for his dismissal was a breakdown in his relationship with his line manager, which the employer viewed as beyond repair. The line manager had said that he lived in constant fear that the worker would make further personalised allegations against him.

In upholding the worker’s appeal against that outcome, the EAT had no hesitation in finding that the ET erred in ruling that his suspension did not amount to detrimental treatment. The worker perfectly reasonably took the view that it did and the lack of medical or other evidence to support his opinion was irrelevant.

When considering the cause of his dismissal, the ET did not refer to relevant case law and failed sufficiently to focus on the central issue: whether the worker’s protected acts in pursuing the previous proceedings were wholly or substantially the reason for his detrimental treatment. The case was remitted to the same ET for reconsideration in the light of the EAT’s ruling.

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Where an older employee is treated less favourably than a younger one in a similar position, the burden shifts onto the employer to prove that age discrimination had no effect on its decision-making. An Employment Tribunal (ET) made that point in the case of an administration manager who was made redundant at the age of 67. The man had worked for a car sales company for more than 20 years when he was selected for redundancy. He contended that his dismissal was pre-determined and motivated by…