Under the Equality Act 2010, a worker is protected from victimisation (ie being subjected to less favourable treatment) because they have done a ‘protected act’, such as raising a grievance alleging discrimination or bringing a discrimination claim. The tribunal must consider whether the particular detrimental act complained of was motivated by the worker’s ‘protected act’. East London ET recently considered whether a casino cashier, who had twice alleged discrimination, was victimised when she was socially excluded by her colleagues, treated less favourably and threatened with disciplinary action if she made further allegations of discrimination.

L, who is of Black African heritage, worked at a London casino for 7 years. In May 2018, L had raised a grievance alleging a breach by the casino of its equality and diversity policy. The policy stated that all vacancies would be advertised unless there was a ‘succession management programme’ in place for an employee. L’s grievance complained about: (a) the appointment of a White supervisor, P, without the vacancy being advertised; and (b) the fact L had not received a bonus. L’s grievance was dismissed on the basis that L had not been entitled to a bonus and that the supervisory vacancy was not advertised because P had been part of a succession management programme (although the employer later admitted this was false and the ET held that this was merely an excuse the manager came up with after L raised a grievance alleging that P’s appointment breached the equality and diversity policy). 

L later brought a second grievance alleging that she was being victimised, harassed, and bullied since her first grievance and was suffering ongoing discrimination regarding promotion. L’s second grievance was dismissed, as was L’s internal appeal. L resigned and brought various claims for unfair dismissal, discrimination, and victimisation. 

The ET upheld several of L’s claims, holding that L had been subjected to various acts of unlawful victimisation, including but not limited to: (a) L being excluded from discussions at work about an after-work drinks social occasion amongst colleagues; (b) the failure to properly investigate L’s allegation that she had been victimised and harassed following her first grievance; (c) by a manager deliberately discouraging L from arguing that what had happened to her was discrimination and threatening L with disciplinary action if she made further discrimination complaints; and (d) being asked to undergo 6-weeks re-training upon return from ill-health absence. The tribunal noted that L had been treated differently because L was regarded as ‘a malicious complainant and therefore a troublemaker’. The ET held that L had been constructively unfairly dismissed and subjected to direct race and age discrimination and awarded L almost £75,000 in compensation. 

(Leher -v- Aspers (Stratford City) Limited and ors [2022] ET 3200390/2019)