July 4, 2022

What is victimisation? (And how to avoid it)

Workers who speak up about discrimination run the risk that their employer might retaliate. Of course, an employer may dispute what a worker complains about – deeming it untrue or inaccurate.

But without appropriate safeguards in place, the very protection a worker enjoys in accordance with the Equality Act, to not be discriminated against, would be entirely undermined.

Let’s take a look at what victimisation actually is by exploring the law that governs it, and examples of it in the workplace today. We’ll also share four steps you can take as an employer to prevent and avoid victimisation at work.

The law on victimisation

Employers are deemed to victimise a worker if they subject them to a detriment because:

  • They did a protected act, or
  • They are believed to have done, or might do, a protected act.

A ‘protected act’ could be one of the following:

  • Worker bringing proceedings under the Equality Act;
  • Worker giving evidence or information in connection with proceedings under the Equality Act;
  • Worker doing any other thing for the purposes of or in connection with the Equality Act;
  • Worker alleges that their employer or another person has contravened the Equality Act.

   Section 27(1) and (2) Equality Act

ACAS would define victimisation as, ‘being treated unfairly because you made or supported a complaint to do with a ‘protected characteristic’, or someone thinks you did’.  Protected characteristics in accordance with the Equality Act are:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

In support of that explanation, ACAS cite an example of a worker giving evidence as a witness in support of their colleague’s claim of sexual harassment claim against their manager.  Unfair treatment by that manager will therefore amount to victimisation.

Victimisation in the workplace today

Unfortunately, despite Section 27 Equality Act, victimisation still occurs through conscious or subconscious unfair treatment. For employers, this can then mean having to deal with complex tribunal claims (with associated time and cost implications), losing good members of staff and a negative impact on productivity.

The results of a recent inquiry into the experiences of workers from ethnic minority and racial groups across the UK undertaken by the Equality and Human Rights Commission (EHRC) found that workers were reluctant to challenge unsafe conditions during the COVID-19 pandemic for fear of being ‘labelled a troublemaker’. 

The findings – entitled ‘Experiences from health and social care: the treatment of lower-paid ethnic minority workers’ – also found this feeling was especially prevalent where terms and conditions of employment were precarious. Workers who contributed to the inquiry reported being subjected to such detriments as barriers in accessing training opportunities or struggling to find out about basic entitlements such as holiday and sick pay.

How to prevent and avoid victimisation in the workplace

Clear and consistently applied policies and procedures

Policies should make it clear how to report issues and how the employer will deal with unlawful, unfair, or inappropriate conduct. But implementing such policies should be more than a box ticking exercise. They should be actively used, consistently applied, and regularly updated.

 The types of policies employers should have in place include (but are not limited to):

  • equal opportunities
  • anti-harassment and bullying
  • whistleblowing

Training

Workers at all levels must understand what victimisation is, what the law says, what behaviour the employer expects and the relevant policies and procedures in place. 

Managers and senior leaders should also have more detailed training to ensure they can spot warning signs and/or identify detrimental conduct early, tackle the problem and ensure they lead by example. 

Training on all matters of equality and diversity cannot be a one-off event (i.e. on induction) and should be a regular and cyclical consideration to ensure a fair and culturally diverse workplace.  Regular training could assist an employer in mounting a defence of a tribunal claim against a claim of discrimination, where they have taken all reasonable steps to prevent it from occurring.  

Promotion of an open and inclusive environment

Employers could achieve this by:

  • Building knowledge about different characteristics and encouraging open forums to discuss diversity.
  • Encouraging informal discussions regarding any issues to take place with managers who will listen (this should help deal with them early and before they snowball).
  • Being careful about how they deal with complaints even if on the face of it they seem trivial or vexatious.

Keeping accurate records of all matters pertaining to equality and diversity

Baroness Kishwer Falkner, chair of the EHRC, in discussing the recent inquiry, said the use of robust workforce data was crucial so ‘organisations know who works for them and what their employees’ experiences are, so they can take action to end bad practice’. 

Recording this information accurately and acting upon it will help engender trust and confidence that equality and diversity is taken seriously.

Taking such steps could avoid some of the pitfalls of victimisation and mitigate the risk of employers being faced with a claim of discrimination. Further, doing so should also help an employer create a positive and a more attractive place of work for all.

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About the author

Michael Farry

Mick has 10 years' experience in providing employment law advice and support in a consultancy setting, both on-site and remotely. His experience extends to handling complex redundancies and TUPE transfers. Mick enjoys working closely and in partnership with corporate and SME clients across a wide range of industries. Mick qualified as a solicitor in 2018 following a two year training contract with employment law as its primary focus. During that time, Mick attained invaluable experience representing clients engaged in contentious employment law disputes and health and safety prosecutions. At Moorepay, Mick provides employment law advice to clients and works closely with the Employment Law Advice Line supporting the department’s continuing professional development.

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