Victimization ruling overturned

Posted: 27th April 2017

EATIt is hardly surprising that some people feel reluctant to make legal complaints about their existing employers. However, as one case concerning an NHS worker strikingly showed, such claims are commonplace and the law requires that employees must never be penalised for standing up for their rights.

The biochemist had in the past brought a successful race discrimination claim against the NHS trust for which she worked and had received compensation and an apology. Remaining with the same employer, she subsequently lodged a grievance against two doctors who had quite unjustifiably criticised her in a professional context.

The trust’s director of HR was aware of the earlier complaint and decided to get involved. He secretly approached the doctors and persuaded them to send letters of apology to the biochemist in a bid to nip her grievance in the bud. He drafted the letters himself but they were designed to look spontaneous. When the biochemist found out what had happened, she said that she felt humiliated and insulted.

Her previous complaint was a protected act under the Equality Act 2010 – meaning that the trust could in no way disadvantage her for having made it. Her victimisation complaint was, however, rejected by an Employment Tribunal (ET). Although the HR director’s actions had in part been prompted by his knowledge of the protected act, the ET found that the way in which he had intervened did not amount to victimisation.

In overturning that ruling, the Employment Appeal Tribunal noted that the ET’s conclusion was not clearly expressed and appeared inconsistent with its factual findings that the HR director wished to avoid the matter escalating in part because of the biochemist’s earlier successful claim and that his intervention was part of a plan to persuade her to take her grievance no further. In the circumstances, the matter was sent back to a fresh ET for reconsideration.