Section 27 of the Equality Act 2010 describes victimisation as treating someone less favourably because they have either:
(a) attempted to bring proceedings, or made an allegation under the Equality Act (for example making a complaint of discrimination to an employer) or
(b) given evidence in connection with those proceedings (for example, by appearing in court on behalf of a colleague who has suffered discrimination).
The Act brought about a change in employment law because previously a claimant had to show that they had been treated less favourably in comparison with others as a result of making a complaint. This is no longer necessary, a claimant need only prove that they have been treated less favourably irrespective of how others have been treated.
In connection with (b) above a person could not be considered to have been victimised if they were treated less favourably having assisted with a false allegation unless any evidence they gave was given in good faith.
An employee (X) attends the annual office party and a colleague makes unwanted sexual advances towards her. X subsequently makes a complaint about her colleague’s behaviour. Her employers fail to take her complaint seriously, laughing off her allegations and saying that her colleague had had a few drinks and it was a party after all and she shouldn’t take things so seriously. Having made this complaint X then finds that she is treated as a trouble causer by her employer and other colleagues. She is ignored by everyone in the office and no longer invited on the regular nights out, lunches or golf days with her colleagues.
X has effectively been victimised because she has been treated less favourably as a result of making an allegation under the Equality Act.
Previously it was accepted that claims for victimisation could not be based on events that arise after an employee has finished working for an employer. The key case in this regard was Jessemy. This was an important case because it found, under s.108 of the Equality Act 2012, that victimisation was not unlawful if it happened after the end of employment.
In this case an employee could not claim to have been victimised when his employer provided a bad reference after his making a claim for unfair dismissal at an Employment Tribunal. However there has been an interesting development in this area with the case of Onu v Akwiku2 In this case, although the facts were not made out to support a finding of victimisation, Jessemy was not followed.
This means that, potentially, claims for victimisation can now arise from events after the end of employment. This is important for those claimants who find that they are not able to secure a reference, or at least a good reference after they have brought claims under the Equality Act against their employers. The respondents were given the right to appeal so that this area of law might be considered more carefully. Employment lawyers will be watching the case closely.