What is victimisation?

Victimisation in employment law is a claim that arises only when an employee has done a protected act under the Equality Act 2010 and has been subject to a detriment for doing so.

Although the word “victimisation” is used a lot in employment situations, usually when a person is being targeted by their employer and treated badly, this is not victimisation. Victimisation only arises in a situation whereby an employee takes certain actions in relation to the Equality Act.

Victimisation is a complicated area of law that our partners specialise in. If you suspect you have been subject to victimisation then you need to take legal advice as it is an extremely serious area of law that can often lead to high-value damages claims. If you contact us via our enquiry form, our partners will contact you for a free consultation if we think we can help.

The formula for a victimisation claim is as follows:

  1. Employee A does a protected act, which is one of the following:
    • bringing a claim under the Equality Act;
    • giving evidence or information in connection with a claim under the Equality Act;
    • doing any other thing for the purposes of or in connection with the Equality Act;
    • making an allegation (whether or not express) that someone has contravened the Equality Act.
  2. Employee A, having done a protected act, is now protected from retaliation from their employer because they did the protected act.
  3. The employer, or an employee of the employer, causes Employee A a detriment because they did a protected act, which is the trigger for a claim against the employer.

How do I obtain Protection from Victimisation?

In order to bring a claim of victimisation, you must first establish that you are protected from victimisation. The protection available to employees from victimisation is wide-ranging, from bringing a claim against your employer under the Equality Act, to doing any other thing for the purposes of or in connection with the Act. While bringing a claim under the Act is plain in its meaning, “doing any other thing” in connection with the Act is wide enough to encompass such matters as challenging a recruitment policy on the basis that it may discriminate, or reporting that you believe that harassment of female employees may be ongoing.

If you suspect that you have done or will be doing an act that qualifies for protection for victimisation, it is vital that it is recorded in writing. Even if the protected act took place in-person, or on a telephone or video call that was not recorded, following up in writing via email is vital to establish that the act took place.

What is a Detriment?

A detriment is defined as a disadvantage that you have suffered because you did the protected act, or that you have been put in a worse position than you would have had you not done the protected act.

The threshold for a detriment is fairly low. You will be expected to point to treatment that you have suffered that amounts to a disadvantage, and if that treatment is found to be a disadvantage, you will have to establish that it is caused by the fact that you did a protected act.

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Most victimisation claims that fail do so because the employee cannot establish a causal link between the protected act that they did and the detriment they suffered, despite them having established both the protected act and detriment.

You will need to demonstrate that the reason why you suffered a detriment was because you did the protected act. You can establish this through presenting evidence to an employment tribunal that indicates it is more likely than not that your detriment was caused by your having done a protected act. This is usually evidence that demonstrates a difference in treatment of you since you did the protected act.

This is a highly technical aspect of victimisation claims and you will require expert legal advice to advance such claims against your employer.

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