Victimisation occurs where a person suffers a detriment because they have carried out, or are believed to have carried out, a protected act under the Equality Act 2010 (EqA 2010).

Protected acts include bringing discrimination proceedings, making allegations of discrimination, giving evidence in discrimination proceedings, or assisting another person with a discrimination complaint.

Unlike other forms of discrimination, a victimisation claim does not require the claimant to show that they were treated less favourably because of a protected characteristic. A person can bring a victimisation claim even if they do not personally possess the protected characteristic connected with the complaint.

Employers can be held legally responsible for victimisation carried out by employees in the course of employment. However, employers may avoid liability if they can demonstrate that they took all reasonable steps to prevent such conduct occurring.

This guide explains what victimisation is, what constitutes a protected act, examples of unlawful victimisation, employer responsibilities, and the remedies available to employees.

What is Victimisation?

Victimisation occurs where:

● an individual carries out a protected act (or the employer believes they have done or may do one); and

● they are subjected to a detriment because of that protected act.

The relevant legal test is whether the person has been subjected to treatment that places them at a disadvantage.

Unlike direct discrimination, there is no requirement for:

 ● a comparison with another employee;

 ● proof that the employee has a particular protected characteristic; or

 ● proof that the employer intended to discriminate.

The key question is whether the protected act was a reason for the detrimental treatment.

Victimisation can therefore arise even where the person responsible did not consciously intend to retaliate. If the protected act influenced the decision-making process, liability may arise.

Protected Acts

Section 27 of the Equality Act 2010 identifies the following as protected acts:

Bringing Equality Act Proceedings

An employee is protected where they bring or threaten to bring proceedings under the Equality Act 2010.

Examples include:

● bringing a discrimination claim in the Employment Tribunal;

● issuing proceedings for harassment;

● bringing a claim for failure to make reasonable adjustments.

Giving Evidence or Information

A protected act includes assisting another person with discrimination proceedings.

Examples include:

● providing a witness statement;

● attending a tribunal hearing as a witness;

● providing information during an internal investigation.

An employee does not need to be the person who brought the original complaint to receive protection.

Making an Allegation of Discrimination

An employee is protected where they allege that an employer or another person has breached the Equality Act 2010.

The allegation does not need to use specific legal terminology such as:

● "discrimination";

● "Equality Act";

● "protected characteristic".

The question is whether the complaint, viewed in context, amounts to an allegation of unlawful discrimination.

For example, an employee stating:

"I believe I am being treated differently because of my disability and my manager refuses to consider adjustments"

may amount to a protected act even if the employee does not expressly refer to the Equality Act.

However, a general workplace complaint, such as saying a manager is "unfair" or "bullying", will not necessarily amount to a protected act unless the circumstances indicate a discrimination complaint.

Doing Anything Connected With the Equality Act

A protected act also includes taking other steps connected with equality rights.

Examples include:

● supporting a colleague's discrimination complaint;

● participating in an equality investigation;

● requesting reasonable adjustments because of disability.

False Allegations and Bad Faith

Employees are protected even where their allegations of discrimination are ultimately found to be incorrect, provided they acted honestly.

A false allegation will only lose protection where it was made in bad faith.

The key question is whether the employee genuinely believed what they were saying.

For example:

● An employee mistakenly believes they have been discriminated against and raises a grievance honestly → protected.

● An employee knowingly invents discrimination allegations to harm a colleague → may not be protected.

The fact that an employee has another motive, such as wishing to challenge performance management, does not automatically mean the complaint was made in bad faith.

What Amounts to a Detriment?

A detriment occurs where an employee is placed at a disadvantage because they carried out a protected act.

The test is whether a reasonable employee could consider the treatment detrimental.

Examples include:

● being denied promotion;

● being excluded from workplace opportunities;

● receiving unfair treatment after raising a discrimination complaint;

● being disciplined because they supported another employee's discrimination claim;

● being dismissed after bringing discrimination proceedings;

● being transferred against their wishes because they complained about discrimination.

A detriment does not need to cause financial loss. It is enough that the employee reasonably feels disadvantaged.

No Requirement for a Protected Characteristic

Victimisation protection applies regardless of whether the employee has the protected characteristic connected with the complaint.

For example:

● A non-disabled employee supports a disabled colleague's reasonable adjustment claim.

● The employer refuses to promote that employee because they supported the complaint.

The employee may bring a victimisation claim even though they are not disabled.

This is because the protection relates to the protected act, not the individual's personal characteristics.

Victimisation During Litigation

Employers are entitled to defend legal proceedings and protect their position.

Not every negative interaction during litigation will amount to victimisation.

For example, an employer may:

● challenge allegations;

● negotiate settlement;

● prepare evidence;

● defend a tribunal claim.

However, employers must avoid retaliatory conduct because an employee has brought proceedings.

Examples of potentially unlawful conduct include:

● dismissing an employee because they brought a claim;

● reducing opportunities because they commenced litigation;

● treating the employee unfavourably because they participated in proceedings.

Post-Employment Victimisation

Protection against victimisation can continue after employment has ended.

An employer may still be liable where it subjects a former employee to a detriment because they carried out a protected act during or after employment.

Examples include:

● refusing to provide a reference because the employee brought a discrimination claim;

● giving an unfairly negative reference because the employee raised equality concerns.

Guidance for Employers

Preventing Victimisation

Employers should take proactive steps to prevent victimisation.

Recommended measures include:

● having equality, diversity and inclusion policies;

● having anti-harassment and anti-bullying procedures;

● providing manager training;

● ensuring employees know how to raise concerns;

● monitoring the treatment of employees who make complaints or act as witnesses.

Fear of retaliation is a significant barrier to reporting discrimination. Employers should therefore create a culture where employees can raise concerns safely.

Employer Liability

Employers can be legally responsible for victimisation carried out by employees where the conduct occurs in the course of employment.

This is known as vicarious liability.

An employer may therefore be liable even where:

● senior management were unaware of the conduct; or

● the employer did not approve of the employee's actions.

The "All Reasonable Steps" Defence

Employers may avoid liability if they can show that they took all reasonable steps to prevent victimisation.

Examples of reasonable steps include:

● implementing equality policies;

● providing regular discrimination training;

● training managers on handling complaints;

● investigating complaints properly;

● taking disciplinary action where appropriate.

A policy alone is unlikely to be sufficient. Employers must show that policies were communicated, implemented and monitored.

Handling Victimisation Complaints

Employers should:

● acknowledge complaints promptly;

● investigate impartially;

● maintain confidentiality;

● avoid treating the complainant negatively during the process;

● take appropriate action where wrongdoing is established.

Employers should be particularly careful when managing employees who have:

● raised discrimination complaints;

● supported colleagues;

● acted as witnesses.

Any subsequent disciplinary action, performance management or dismissal decision should be carefully documented to demonstrate that it is unrelated to the protected act.

Repeated or Unfounded Complaints

Employees who make repeated complaints are not automatically acting improperly.

Employers should distinguish between:

● complaints that are mistaken but honestly made; and

● complaints that are deliberately dishonest.

Taking action against an employee because they raised discrimination concerns creates a significant victimisation risk unless the employer can demonstrate a genuine and unrelated reason for the decision.

Guidance for Employees

Understanding Your Rights

Employees are protected where they:

● complain about discrimination;

● bring discrimination proceedings;

● support another person's discrimination complaint;

● provide evidence or information;

● request equality-related support.

Protection applies even where the employee does not personally have the protected characteristic involved.

Examples of Victimisation

Examples may include:

● dismissal after bringing a discrimination claim;

● refusing promotion because an employee complained about discrimination;

● excluding an employee from meetings after they supported a colleague's complaint;

● disciplinary action because an employee acted as a witness;

● reducing workplace opportunities because an employee raised concerns about equality.

Raising a Victimisation Complaint

Employees who believe they have been victimised should consider:

● raising the matter through the employer's grievance procedure;

● keeping records of relevant events;

● retaining emails, messages and documents;

● seeking advice before resigning or bringing proceedings.

Employees should be aware that resignation is not required to bring a victimisation claim.

Time Limits for Claims

Victimisation claims must normally be brought in the Employment Tribunal within:

three months less one day from the date of the discriminatory act.

However:

● Acas Early Conciliation may extend the time limit;

● a continuing course of conduct may allow multiple incidents to be considered together;

● tribunals may extend time where it is just and equitable to do so.

Employees should seek advice promptly because tribunal deadlines are strict.

Remedies

If a victimisation claim succeeds, an Employment Tribunal may award compensation including:

Financial Loss

Compensation may include losses caused by the victimisation, such as:

● loss of earnings;

● loss of benefits;

● future financial loss.

Injury to Feelings

Employees may receive compensation for the emotional impact of the victimisation.

Awards are assessed using the Vento guidelines, which provide bands of compensation depending on the seriousness of the discrimination.

Aggravated Damages

In appropriate cases, additional compensation may be awarded where the employer's conduct has aggravated the employee's injury.

There is no statutory cap on compensation for victimisation claims.

This guide provides general information only and is not legal advice.contact us at contact@gec-law.co.uk for tailored legal advice