295: EAT considers whether vague allegations are protected under the Equality Act 2010
Under the Equality Act 2010, an employee may have a claim for victimisation if they have suffered a detriment because they have committed a protected act. Making an allegation that their employer has contravened the Equality Act is a protected act. As long as the allegation is made in good faith, it does not matter if it is factually incorrect. However, it must be clearly expressed. In the recent case of Chalmers v Airpoint Ltd, the Employment Appeal Tribunal (EAT) considered whether the wording used in an employee’s grievance was insufficiently clear to amount to a protected act.
Mrs Chalmers carried out HR functions for Airpoint Ltd. She raised a written grievance claiming that her manager’s manner was aggressive and unhelpful, her work was being ignored, and she had been excluded from two work events including the Christmas night out because it was on a date she could not attend. Mrs Chalmers stated in her grievance that this ‘may be discriminatory’. Her grievance was rejected, and she subsequently brought claims for sex discrimination, harassment and victimisation. The protected act relied on for her victimisation claim was the allegation of discrimination in her grievance.
The Employment Tribunal dismissed all Mrs Chalmers’ claims. Her victimisation claim was rejected on the basis that she had not made a protected act because the words ‘may be discriminatory’ did not amount to a clear allegation that Airpoint had breached the Equality Act. The Tribunal took into account the fact that Mrs Chalmers was experienced in HR, articulate and well-educated. She appealed on the basis that it was clear that her reference to discrimination was an allegation of sex discrimination.
The EAT upheld the Tribunal’s decision, agreeing with its reasoning. The Tribunal had considered whether the lack of a clear reference to sex discrimination and Mrs Chalmers’ use of the word ‘may’ were due to a lack of facility with words or ignorance about the concept of sex discrimination. Given her background and experience, the EAT concluded that if she had wanted to make an allegation of sex discrimination, she would have done.
This decision may seem harsh as employees will often be wary of making an explicit allegation of discrimination and may be raising the issue in order to resolve it, rather than bring a Tribunal claim. As this case illustrates, Tribunals will look at the context and surrounding circumstances when considering whether an allegation amounts to a protected act, including the background and experience of the employee. In any event, in order to minimise the risk of a subsequent victimisation claim, it would be safer for employers to assume that any mention of discrimination does qualify as a protected act.