An employee who brought disability discrimination claims against her employer was found to have been victimised when the employer did not award her a pay rise because of her actions. Whilst there was no contractual right to a pay rise, prior to bringing the claim the employee had always received one.
The employer had tried to argue that the pay rise had not been granted principally due to poor performance, but this was not accepted by the judge based on the evidence.
This case highlights the importance of employers being aware of the protection from victimisation employees have under the Equality Act.
Facts of the Case
In Saunders v Pavers Ltd, the employee worked as a manager in a retail store. In December 2018 she complained to an employment tribunal that she had been subject to a number of acts of disability discrimination. At the end of March 2019 the employee’s manager called the employee and told her that she would not be receiving an annual pay rise next month. When the employee queried this, she was told it was due to poor performance, the employee asked for details of the poor performance but received no response. On 8th April the employee’s tribunal claims failed.
Later in the month, the employee again asked for details of why she had not received the pay rise before sending an email expressing her opinion that the decision was taken because she had brought tribunal proceedings and that this was an act of victimisation. The employee asked for a written explanation for the decision, but this was not given, she went on to raise a grievance that she had been victimised. Her grievance was not upheld and the decision not to award the pay rise was again mainly put down to performance. The employee’s grievance appeal was unsuccessful. She complained to an employment tribunal that she had been victimised.
The employment judge found that:
- The employee had done a protected act when she complained to an employment tribunal that she had been discriminated against.
- There were facts on which it could be found that the decision not to award the pay rise was because of the protected act. These included the employee always previously receiving a pay rise, all long serving managers in the same area receiving a pay rise – none of them had brought discrimination proceedings against the employer but the employee had, it was anomalous to disallow an annual increase because of poor performance but to award a performance bonus and the employer repeatedly refusing to provide the written explanation the employee had requested as to why the pay rise had not been given.
- The employer failed to establish that the employee making the discrimination claim was not a significant factor in the refusal to give her a pay increase. In particular, the judge commented that if performance was as troubling as the employer made out, he would have expected to see a specific performance management plan and coaching forms which the employer used in such situations. Furthermore, if the reasons for not awarding the pay rise were multifactorial as was put forward at the hearing, he would have expected this to have been set out in the outcome to the employee’s grievance and the employer’s defence to the tribunal claim which wasn’t the case here.
As highlighted by this case, it’s important for employers not to subject an employee to a detriment because they have done a protected act or the employer believes that the employee has done or may do a protected act. But what is a protected act?
It’s not just bringing proceedings under the Equality Act, such as making a discrimination claim as in this case. It also includes for example:
- An employee alleging that the employer or another person has contravened the Equality Act e.g. making a complaint about harassment
- Giving evidence or information in connection with proceedings under the Equality Act, regardless of who brought those proceedings e.g. giving evidence in a colleague’s discrimination complaint
As there is no limit on the amount an employment tribunal can award if an employee is successful in a victimisation claim, it’s important to bear in mind that such actions can be costly.
If you have an employment law matter that you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.