We report on two race discrimination cases in this issue, both concerning victimisation.
Section 27(1) of the Equality Act 2010 provides that a person (A) victimises another person (B) if A subjects B to a detriment because B does a protected act. Section 27(2) states that protected acts include bringing proceedings under the Act and making an allegation that A or another person has contravened the Act. Section 27(3) states that making a false allegation is not a protected act if the allegation is made in bad faith.
In Woodhouse v West North West Homes Ltd the claimant had submitted multiple grievances and tribunal claims over a four-year period alleging race discrimination. Eventually the employer dismissed the claimant alleging that his employment could not continue as he had lost trust and confidence in the employer. The claimant made a further claim for race discrimination, harassment and victimisation.
The employment tribunal rejected his claims stating that "We find that a comparable employee, who had evinced similar profound and long-standing lack of faith by submitting similar ill-founded grievances, but without any racial connotation, would have been similarly treated.". The claimant was dismissed for "some other substantial reason" and not because of the protected acts.
The tribunal also held that the case was "on all fours" with Martin v Devonshires Solicitors in which the grievances related to acts that had never actually occurred as the employee had paranoid delusions and she imagined the incidents in question. In this case the EAT held that in principle it was open to an employer to argue that the reason for dismissal was genuinely separable from the protected acts.
The EAT held that the tribunal had been wrong to use a comparative approach. The employment tribunal had explicitly found that the grievances had not been made in bad faith; in fact the tribunal accepted that the claimant was sincere in his making of grievances and tribunal applications. The EAT held that where multiple grievances are made in good faith, they are protected acts. Martin is an exceptional case; very few cases will have grievances based on paranoid delusions about events that never happened. The "irrationality and multiplicity" of grievances should not routinely lead to cases falling outside of the protection from victimisation in the Equality Act, said the EAT, especially where the origin of the problem was a real, as opposed to imaginary, incident of race discrimination.
Furthermore, there was no genuinely separable feature; the claimant was dismissed either for past protected acts and/or the possibility of future protected acts. The subsequent dismissal of the employee amounted to victimisation under the Equality Act 2010. The tribunal had been wrong to find that the employer's reasons for dismissing the employee were genuinely separable from the protected acts.
Action points
It is hard not to feel some sympathy for the employer who stated at the tribunal that continuing with the claimant's employment "would result, at some future date, in further allegations, themselves damaging and taking up considerable time. That was not a risk the organisation was prepared to run." It is undoubtedly true that the time and cost taken to deal with multiple allegations and grievances can be high. However, it is arguable that if a claimant's very first grievance is dealt with properly then the situation may not get so out of control. To ensure this is the case employers should focus on training and proper and rigorous implementation of equal opportunities policies.
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