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Victimisation – A Warning for Employers...

Victimisation – A Warning for Employers...

Jennifer Packham

One employment tribunal claim is often more than enough for an employer to deal with, but imagine having not one, but seven tribunal claims to defend in addition to ten separate grievances to consider, all raised by the same employee? That was exactly what West North West Homes Leeds faced, with these claims and grievances forming the basis of the discrimination by way of victimisation claim raised by the employee and eventually considered by the Employment Appeal Tribunal (“EAT”) in Woodhouse v West North West Homes Leeds Ltd.

Mr Woodhouse is a black employee and brought the various grievances and tribunal claims against his employer over a four year period, each alleging race discrimination. Almost all of the grievances and claims were found to be “empty allegations without any proper evidential basis or grounds for his suspicion”. It’s not too difficult to put yourself in the shoes of Mr Woodhouse’s employer and appreciate that the various claims and allegations of race discrimination that were raised by Mr Woodhouse would have resulted in a less than harmonious working environment. Eventually, and to some extent, unsurprisingly, his employer considered that there had been a break down in trust and confidence to such a degree that they felt it was no longer possible for Mr Woodhouse to continue working in the organisation and he was dismissed.

The story does not end there, however, because Mr Woodhouse then lodged his eighth claim in the employment tribunal alleging that his dismissal was an act of discrimination by way of victimisation arising from the complaints of race discrimination that he had made which were, he argued, “protected acts”. Protected acts are listed in section 27(2) of the Equality Act 2010 and include bringing proceedings under the Act, and alleging (whether expressly or otherwise) that the respondent or another person has contravened the Act. If the employer then subjects an employee to any detriment because of those protected acts, provided the acts were carried out in good faith by the employee, the offence of victimisation is established.

At first instance the Employment Tribunal did not hold that the dismissal amounted to discrimination by way of victimisation and found that the employer would have dismissed any employee (regardless of race) who had brought a similar number of empty allegations and claims. Mr Woodhouse appealed against this decision and the EAT held that he had been subjected to a detriment (dismissal) as a result of carrying out protected acts. The EAT stated that a comparator was not required in the context of a victimisation claim, unlike the requirements in a direct discrimination claim and concluded that there was no suggestion that Mr Woodhouse had acted in bad faith in raising the grievances or bringing the claims. His victimisation claim was therefore successful.

From a legal perspective, this decision makes sense and is legally correct, however, it does leave you with a degree of sympathy for the employer. This case is a useful warning to employers that no matter how unlikely or unfounded discrimination grievances or claims may be, provided they have been made by the employee in good faith, an employee cannot be dismissed because of raising such grievances or claims.

Jennifer Packham
Senior Solicitor

LChalmers