The EAT in Saad v Southampton University Hospitals NHS Trust has held that an employee was able to claim victimisation where subjected to detriment for alleging discrimination even though the allegation was made for an ulterior motive (to deflect criticism of his performance). The requirement for the allegation to be made “in good faith” simply means that the employee must have acted honestly, ie subjectively believed in what they said (even if the allegation is later found to be false).
Employers should ensure managers do not treat individuals less favourably because allegations of discrimination have been made, whether by the individuals themselves or others.
Following two conflicting EAT decisions last year (see here), the Court of Appeal has now ruled that the Equality Act should be read as prohibiting post-employment victimisation, notwithstanding a drafting error. Such victimisation often consists of an employer giving an unfairly negative reference or refusing to give a reference (when it is normal practice to do so) for an ex-employee because they made a discrimination claim. (Jessemey v Rowstock, CA)
Where an employee makes repeated allegations of discrimination which the employee believes to be true but which the employer considers unfounded, employers may be tempted to dismiss on the grounds of a breakdown in trust and confidence. A recent EAT ruling emphasises that in most cases this will amount to unlawful victimisation (because the dismissal is because of a protected act, namely alleging unlawful discrimination, whether or not the original allegations are unfounded).(Woodhouse v West North West Homes Leeds, EAT)
It will only be in exceptional circumstances, such as in Martin v Devonshire Solicitors, that the employer's reasons can be viewed as separate from the protected acts. The facts in that case were rare: the alleged events were found never to have occurred and likely to be paranoid delusions on the part of a mentally ill employee.
The fact that an employee makes multiple complaints, and becomes "obsessive and fixated" or irrational, does not amount to exceptional circumstances and does not amount to a reason to dismiss separate from the complaints themselves. Employers in this situation need to consider some other form of resolution, perhaps through mediation or workplace counselling, while also ensuring each grievance is properly addressed.
Two EAT cases show what’s wrong with parts of the statute dealing with post-termination victimisation
Prior to the introduction of the Equality Act 2010, it was clear that post-termination victimisation was unlawful. This often takes the form of employers giving ex-employees a bad reference because they have brought a discrimination claim.
The Equality Act muddied the water, due to an apparent drafting error. Section 108, dealing with relationships that have ended, states that conduct which amounts to victimisation is not a contravention of provisions in that section. It appears the drafters thought (wrongly) that post-termination victimisation was covered elsewhere in the statute.
Two recent EAT decisions have given conflicting judgments on whether former employees can make such a claim. Continue reading
The EAT has ruled that post-employment victimisation is unlawful, departing from its previous decision in Rowstock v Jessemy. (Onu v Akiwiwu)
Such victimisation often consists of an employer giving an unfairly negative reference or refusing to give a reference (when it is normal practice to do so) for an ex-employee because they made a discrimination claim.
The conflicting decisions derive from a drafting error in the Equality Act. The government did not intend to exclude protection from such conduct, but the EAT has reached conflicting conclusions as to whether the wording can be interpreted to provide it or, if not, whether words can be read in to comply with EU law. The issue will have to be resolved by the Court of Appeal, due to hear Rowstock later this year.
Case law has established that subjecting an employee to detriment post-employment for a whistleblowing disclosure made during employment is unlawful. In Onyango v Berkeley the EAT has now confirmed that there is protection even if the disclosure itself is made after the employment has ended.
In contrast, the EAT in Rowstock v Jessemey has ruled that, due to a drafting error, the Equality Act does not prohibit post-employment victimisation. This commonly consists of an employer giving an unfairly negative reference or refusing to give a reference (when it is normal practice to do so) because the employee has made or been involved in a discrimination claim. Leave to appeal was given; if the appeal fails, the Government will need to amend the Act as this position contravenes EU law.
The Government has proposed, and the House of Lords approved, a number of amendments to the Enterprise and Regulatory Reform Bill:
The Court of Appeal has ruled that the law does not prohibit workers from victimising their colleagues for whistleblowing, and therefore an employer cannot be held vicariously liable for their acts. The Court considered that it was not possible to read the necessary words into the legislation to provide this protection. Public Concern at Work has since called for a government review of the legislation to ensure employees who blow the whistle are protected from retaliation from colleagues.
Of course employers should still ensure they take appropriate steps to protect a whistleblower in this situation. An employer that fails to do so could be primarily liable for whistleblowing detriment in relation to its own deliberate failure to act. It could also face claims for constructive dismissal or be found vicariously liable for colleagues' conduct that breaches the Protection from Harassment Act 1997.
The Court also confirmed the EAT judgment that an employee claiming whistleblowing detriment need only show that the protected disclosure played more than a trivial part in the employer's reason for the treatment, and not that it was the core reason for the treatment. (NHS Manchester v Fecitt, CA)