Whilst many businesses are aware that employees who raise a complaint in connection with the Equality Act, such as discrimination or harassment, are protected from being victimised as a result, it can be all too easy to overlook the protection that witnesses who provide evidence also have.
In the case of Murphy v Wrens Kitchens Ltd the business was ordered to pay the employee over £14,000 after his complaint of victimisation was upheld.
The judge found that the employee had been dismissed after he provided a witness statement in an internal investigation against a general manager, who was accused of making racial and sexual comments. The business unsuccessfully argued that the employee had been dismissed due to poor performance.
So, what happened in this case and what are some of the key questions businesses often have in relation to victimisation?
1. Facts of the case
2. What did the judge say?
3. Key questions
Facts of the case
The employee had less than two years’ service and worked as a designer in one of the employer’s kitchen showrooms. There was an investigation into allegations of racial and sexist comments being made by a manager and the employee was one of those who gave a statement during the investigation. He and other employees also expressed concerns about possible retaliation by the manager.
Following the investigation the manager was ultimately given a final written warning for his conduct. As part of the process, he was given a copy of all the witness statements, including the employee’s, and knew what had been said about him.
Soon after the manager was issued with the warning, action was commenced to address the employee’s performance, which hadn’t been up to scratch for some time. Despite the employee’s performance improving and there being time remaining in the performance review period, the manager dismissed the employee. The manager did this just over two months after being told the outcome of the investigation into his own conduct.
The employee tried to appeal, but this was denied. He complained to an employment tribunal that his dismissal was an act of victimisation.
What did the judge say?
The judge held that the employee had been victimised, finding amongst other things that:
- The manager felt the outcome of the internal investigation into his own comments was harsh. He had in his mind a sense of unfairness in being issued with a final written warning and the knowledge that the employee had given a statement which had resulted in part in this outcome. The manager’s treatment of the employee changed after he gave the statement.
- The manager could not give a coherent explanation to the tribunal as to why he did not start to address the employee’s poor performance sooner, and why he only did so after the outcome of the internal investigation. Furthermore, he was unable to explain the reasons why in the circumstances he decided to dismiss the employee – his performance had improved.
- The judge found that the manager was unable to explain why he dismissed for poor performance because this was not the real reason for the dismissal. His decision to dismiss was influenced by the employee’s statement in the internal investigation rather than his performance, as such the employee’s dismissal was an act of victimisation.
The judge awarded the employee £14,397.01.
Key questions
This case highlights the importance of employers being aware of victimisation as overlooking this protection can lead to costly claims. So, what are some of the common questions businesses have when it comes to victimisation?
- What is victimisation and what sort of acts should be avoided?
In short, you must not subject an employee to detrimental treatment because they have done, or you believe they have done, or may do a ‘protected act’. A protected act is:
- Alleging there has been a contravention of the Equality Act
- Bringing proceedings under the Equality Act
- Giving evidence or information in connection with proceedings under the Equality Act
- Doing any other thing for the purposes of, or in connection with, the Equality Act
Victimisation can include acts such as:
- Denying an employee promotion or development opportunities because they have raised an internal complaint about harassment
- Dismissing an employee because they have made a tribunal claim about discrimination
- Taking action short of dismissal, such as disciplinary action resulting in a written warning, because they have supported a colleague’s discrimination complaint
- Is a qualifying period of service required for a victimisation claim?
No, unlike some other tribunal claims, such as ordinary unfair dismissal, there is no qualifying period of service required for a victimisation claim. It’s therefore important to be alert to the issue and to seek advice where needed before taking action in relation to an employee, irrespective of how long they have worked for you.
(c ) How much can an employee be awarded if they win a victimisation claim?
There is no upper limit on how much an employment tribunal can order an employee to be paid if their claim is successful. As such, it can be an attractive claim for some employees to raise. Any award for victimisation will be based on the facts and circumstances of the case.
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