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Victimisation at work – a quick guide

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What is victimisation in the workplace

Victimisation is when someone punishes you because have have complained about discrimination or you have helped someone else who has been the victim of discrimination in the workplace.

Unfair treatment can cover a wide range of conduct: you may be labelled as a trouble-maker, ostracised by your colleagues, bullied, disciplined or even dismissed from your job.

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Examples of workplace victimisation

  • A non-disabled worker gives evidence on behalf of a disabled colleague at an Employment Tribunal hearing where disability discrimination is claimed. If the non-disabled worker is subsequently refused a promotion because of  that action, they would have suffered victimisation in contravention of the Act
  • A grocery shop worker resigns after making a sexual harassment complaint against the owner. Several weeks later, she tries to make a purchase at the  shop but is refused service by the owner because of her complaint. This could amount to victimisation
  • An employer threatens to dismiss a staff member because he thinks she intends to support a colleague’s sexual harassment claim. This threat could amount to victimisation, even though the employer has not actually taken any action to dismiss the staff member and may not really intend to do so

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Victimisation cases in the newspapers

  • Gillingham loses race appeal over striker Mark McCammon (BBC)
  • Christian doctor’s ‘victimisation’ claims rejected by Employment Tribunal (National Secular Society)
  • High-flying banker called Crazy Miss Cokehead by bullying colleagues set to win millions after sexual harassment at Russian firm’s London office (The Mail Online)
  • Former worker wins victimisation ruling over negative reference (Oxford Mail)

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Successful victimisation cases in the Employment Tribunal

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The definition of victimisation under the Equality Act 2010

(1)A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.s.27 Equality Act 2010

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When are you protected under the Equality Act 2010?

You are protected against victimisation in the workplace only if you do one (or more) of the follow things (known as “protected acts”):

  • Submit a claim for discrimination or harassment under the Equality Act 2010 or make a complaint to your employer that you’ve been discriminated against or harassed
  • Give evidence or information to help someone else who has made a claim or complaint of discrimination or harassment
  • Do any other thing which is related to the Equality Act; or
  • Say that someone has done something unlawful under the Equality Act

Any complaint or claim for victimisation that you make must be made in good faith. This is extremely important – if your complaint is found to have been made in bad faith then your claim for victimisation will fail. However, you may still be protected against victimisation in the workplace even if the allegations are made by mistake or are untrue, as long as they are made in good faith.

Detriments which could amount to victimisation

If you are subjected to any form of “detriment” by your employer because you have done a “protected act” then you may have been ‘victimized’.

A “detriment” can be any one (or more) of the following, individually or in combination (the list is not exhaustive):

  • Bullied or harassed
  • Ostracised in the workplace
  • Rejected for promotion
  • Denied opportunities for training
  • Disciplined; or
  • Dismissed

Essentially, it can be any act or omission which disadvantages you or reasonably changes your position for the worse.

Example
A senior manager hears a worker’s grievance about harassment. He finds that the worker has been harassed and offers a formal apology and directs that the perpetrators of the harassment be disciplined and required to undertake diversity training. As a result, the senior manager is not put forward by his director to attend an important conference on behalf of the company. This is likely to amount to detriment

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When are you not protected?

You are not protected from victimisation under the Equality Act 2010 if your complaint is made in bad faith.

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Action you can take if you think that you’re being victimised

If you think that you are being subjected to a detriment because you have done, will do, or are considering doing a protected act then you should take action as soon as possible. Below are some examples of what you can do:

  • Inform your line manager that you believe that you think that you are being victimised. Make sure that you put a complaint in writing (preferably by email so that there is a time and date stamp on the complaint and you can prove that it has been sent to the relevant person) and keep a copy. If you think that it is your line manager who is victimising you then make a complaint so someone else in a position of authority in your organisation.
  • Make a formal complaint (known as a “grievance”) to your HR department and also keep a copy of this
  • Obtain specialist advice from a qualified person – you can either consult a lawyer directly or make an appointment with the Citizens Advice Bureau to obtain initial advice
  • Collect evidence of the incidents that you think may amount to victimisation. An important thing to do is to keep a diary of all of the incidents of victimisation that you think that you have suffered and to record exactly who was involved and what happened. Try and obtain any witness evidence that you can from colleagues who have seen or heard things. Keep any letters, emails, minutes of meetings etc. that you think are relevant.

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Making an Employment Tribunal claim for victimsation

If you want to make an Employment Tribunal claim for victimisation then you must do the following:

  • Make your claim within three months of the last date of victimisation (this is also known as the “limitation date”). The last date of discrimination can often be difficult to pinpoint so you must be extremely careful that you do not fall outside of the three-month period
  • Since May 2015 you must also apply to ACAS for a certificate of early conciliation – if you fail to do so then you will not be able to bring your claim in the Employment Tribunal (unless very limited exceptions apply)
  • Gather enough evidence to allow you to prove your case in the Tribunal – this includes both documentary evidence and, if applicable, witness evidence.

It’s important to note that (unlike, for example, unfair dismissal claims) you don’t need to have worked for your employer for any particular length of time to make a claim for victimisation – you have the right to do this from “day one”.

You may have to pay a fee to issue your claim for victimisation unless you qualify for a fee remission. You may also have to pay a fee for the Employment Tribunal hearing – again, you may not need to do so if you qualify for a fee remission.

Details of when you may qualify for a fee remission are available in the EX160A form on the Ministry of Justice website.

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Next steps

  • Learn more about victimisation
  • Obtain expert legal advice on your potential claim for victimisation
  • Taking action about victimisation at work

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Call Redmans today to discuss your employment law matter

Call Redmans on 020 3397 3603 or email us at enquiries@redmans.co.uk to discuss your employment law matter.

Alternatively, you can call Chris Hadrill, the partner responsible for the employment department, on 020 3397 3601 or email him at chadrill@redmans.co.uk.

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Chris Hadrill
Name: Chris Hadrill
Position: Partner
Email: chadrill@redmans.co.uk
Telephone: 020 3397 3601
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Disability discrimination

Our guide explains that you can't be discriminated against because you are disabled. It covers rights your right to have reasonable adjustments made to the workplace to compensate your disability, your right not to be treated less favourably because you are disabled, and your right not to be subjected to a detriment as a consequence of your disability. It also includes a guide to what action you can potentially take if you believe that you are being discriminated against because you are disabled.

Basic rights at work

Rights at work includes the right to time off work, your contract of employment, your rights regarding health and safety, regarding trade unions, discrimination, harassment, bullying, harassment, victimization, and whistleblowing

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