How to spot victimisation? What is the protected act?

Victimisation under UK employment law is the unlawful practice of treating an employee or worker unfavourably because the employer knows or suspects that the employee or worker has done or intends to do a protected act.

Protected acts include bringing proceedings under the Equality Act 2010, giving evidence or information in connection with proceedings under the Equality Act 2010, alleging that the employer had contravened the Equality Act 2010 or doing any other thing for the purposes or in connection to the Equality Act 2010.

In the discrimination field of employment law, the employee or worker does not need to have a particular protected characteristic. It is the protected act that is relevant. Furthermore, the employee or worker is not required to show “less favourable treatment” with reference to a real or hypothetical colleague. Also, an employer taking honest and reasonable steps to protect itself in employment litigation should generally not be liable to an employee for victimisation.

False statements made in bad faith are not protected acts, but incorrect statements made in good faith are protected.

The Equality Act 2010 also makes employers legally responsible for victimisation committed by their employees and workers in the course of employment. It does not matter whether the employer knows about or approves of the acts of their employees or workers. It is the staff or worker members actions towards the “victim” who has done a protected act that matters.

Kokomane v Boots Management Services (2025) EAT 38

In Kokomane v Boots Management Services, the Employment Appeal Tribunal (EAT) decided that, when considering whether a ‘protected act’ has occurred within a victimisation claim, tribunals should always consider the wider context.

The claimant was the only non-white member of staff employed at a branch of Boots on a full-time basis, with the only other non-white employee being a relief pharmacist. In April and October 2020, the claimant raised grievances complaining of bullying, harassment and victimisation from a relief pharmacist. The claimant stated that she was being treated differently from other staff members. A key element of her complaint was that a relief pharmacist had accused her of shouting during a disagreement about a set of keys to a cupboard. Among other things, the claimant argued that she was rebuked due to a supposed racial trope about black people shouting. The Employment Tribunal found the claimant’s grievances and grievance hearing did not amount to protected acts under the Equality Act 2010 as they did not mention race or discrimination. Overturning this decision, the EAT found that the tribunal had applied too narrow interpretation of the law and had failed to take account of the full context in which the grievance was made. The key question was what the employer would have understood from the complaint given all the surrounding circumstances. The EAT identified several factors that should have been considered here:

• The Claimant was the only black employee in the store
• She had pointed out that she was being treated differently as part of her grievance
• The tribunal found that she was accused of shouting
• The grievance meeting notes raised an issue that shouting may be connected to black women in a negative way.

The assessment of whether a grievance constitutes a protected act should take into account the context and circumstances.

The EAT decided that the allegation relied on as a ‘protected act’ need not state explicitly that an act of discrimination has occurred. All that is required for there to be a protected act is that facts should be asserted which are capable in law of amounting to an act of discrimination.

What should employers do?

Employers should therefore be vigilant and look out for all the factors in a grievance in which protected characteristics may be a factor, even if not explicitly mentioned by the employee or worker in the grievance. Employers will need to make their staff aware of how to spot potential protected acts, including proving specific training to line managers and HR teams.

In addition, it is important to review the language in grievance communications such as outcome letters and meeting minutes thoroughly. As we have seen in Kokomane v Boots case, language in communication matters and it is worth bearing in mind that internal communication may be disclosable in legal proceedings unless legally privileged, in the nature of advice from solicitors or information passed to solicitors for the purposes of obtaining legal advice.

If you require advice in regard to an employee grievance, or advice on whether something said is a protected act or whether the an individual is being victimised, please get in touch with the experienced employment solicitors at Thomson Snell & Passmore who will be pleased to assist.