What is victimisation at work?

There is often confusion about what victimisation is. The term is often used to mean to be treated badly. However, there is a legal definition of victimisation which is far more specific than that. This blog will answer the question ‘what is victimisation at work?’ in the context of that legal protection, and it will also set out potential next steps.

Protection from victimisation is contained within the Equality Act 2010.  Under the act, Victimisation occurs when an individual suffers a detriment because they did something called a protected act.

 

What is a protected act?

Examples of protected acts may include:

Making a complaint of discrimination e.g. in a grievance.

Supporting someone else’s complaint e.g. being a witness in Employment Tribunal proceedings (in support of the person bringing the claim).

Raising concerns about discrimination or harassment occurring.

Bringing a claim at the Employment Tribunal relating to the Equality Act e.g. discrimination, or indicating an intention to bring such a claim.

Doing anything else connected with the enforcement of the Equality Act.

What is detriment for the purposes of a victimisation claim

The term detriment has been described in many ways. However, it has been interpreted broadly and essentially means disadvantage.

Here are some examples of potential detriments:

Being passed over for promotions.

Unjustified disciplinary action.

Exclusion from meetings or team activities.

Sudden negative changes in performance appraisals or workload.

Dismissal or threats of dismissal.

 

The necessary link between the protected act and the detriment

 

As referred to earlier, the detriment(s) complained of must be because of the alleged protected act(s). This is because the purpose of the victimisation provisions in the legislation is to protect those who make complaints of the sort referred to above.

 

Who decides whether or not a claim of victimisation is successful?

 

A claim for victimisation would need to be lodged at an Employment Tribunal. For more information about lodging an Employment Tribunal claim read our blog What is an ET1 form?  If you would like to know more about defending an Employment Tribunal claim read our blog  What is an ET3 form?  To find out What’s involved in Employment Tribunal proceedings? Click  the link.

It will ultimately be for the Tribunal to decide what happened and why, after considering the evidence before it.

What should employers do to reduce the likelihood of situations escalating into victimisation claims?

 

1. Have robust policies and procedures in place

 

Such policies will increase the likelihood that issues, such as grievances, performance improvement plans or disciplinary issues, are dealt with consistently. The policies and procedures may well provide guidance to managers on the steps that should be taken to ensure the matter is addressed appropriately.

 

Having such procedures in place is an indication that the organisation is acting in a transparent way: all parties involved know why the action is being taken, such as conduct, performance etc. For example, a disciplinary procedure may well list actions that would result in disciplinary action being taken, and a personal improvement plan would highlight the areas in which the person is falling short.

2. Ensure managers have regular training

 

It is important that support is available to ensure that managers deal with issues appropriately. For example, by knowing when a grievance or disciplinary issue should be escalated and how that should be done.

 

3. Investigate issues thoroughly and consistently

 

It is always important to investigate issues thoroughly in order to understand what happened and why. Such investigations may be in the context of the disciplinary process or in relation to a grievance. For more information on Investigation meetings at work  read our blog.

A thorough investigation is particularly important in circumstances when an individual is alleging a detriment due to making a complaint. This may be a grievance alleging harassment or a complaint that the organisation has not made reasonable adjustments to support a disabled employee.

 

4. Ensure that records are maintained

 

As stated above, it is important to have policies in place and to provide training, but it is also vital to keep records of what was done in order to evidence decision making.

 

What should people do if they believe they have been victimised?

1. Seek professional advice as soon as possible

 

Obtaining professional advice is likely to provide clarity regarding next steps and explain potential options such as bringing an Employment Tribunal claim. There are strict deadlines for Employment Tribunal claims. Therefore, it would be sensible to gain advice quickly.

 

2. Raise the issue with your employer

 

It may be that raising the issue will be enough to resolve the situation. Therefore, this step should not be ignored (even if it feels daunting or you feel that it is unlikely to change anything).

 

3. Exhaust internal procedures

 

If you feel that you have experienced some form of disadvantage due to making a complaint, an option is to raise a grievance. For more information on Reasons to file a grievance at work read our blog.

 

Using internal procedures will provide a further opportunity for the employer to address the issue and potentially get everything back on track. However, it is important to be mindful that the Employment Tribunal time limits still apply regardless of whether or not you are waiting to hear an outcome, such as an appeal against dismissal.

 

 

4. Keep records

 

It is common for memories to fade over time. Therefore, having a record of events and times is particularly valuable for future reference.

 

Plotkin & Chandler works exclusively in the areas of HR and employment law.

We offer a full range of services for employers. Whether you would like assistance to draft policies and procedures, HR consultancy where we would undertake tasks on behalf of your organisation, or you would like HR training to better understand a particular topic, we can support you. In addition to our HR services, we also have expertise in defending an Employment Tribunal claim,  such as discrimination and harassment.

We also offer a range of services to employees. Perhaps you would like guidance on potential next steps, you would like assistance to draft a grievance, support with preparing for a disciplinary hearing, or you would like to discuss bringing an Employment Tribunal claim.

For a free consultation, to discuss your needs and the ways in which we can help, call us on 020 3923 8616 or email us at info@plotkinandchandler.com