Victimisation

The protection that makes the rest of discrimination law usable — because a right you cannot complain about without being punished for it is not a right at all.

Do I need a protected characteristic to bring a victimisation claim?

No. Victimisation protects the act, not the person. A colleague who gives evidence supporting someone else's discrimination complaint, or who reports discrimination they witnessed, is protected even if they share none of the characteristics involved.

What counts as a protected act?

Bringing proceedings under the Equality Act 2010, giving evidence or information in connection with proceedings under it, doing any other thing for the purposes of or in connection with the Act, or alleging that someone has contravened it. A grievance alleging discrimination is the most common example.

Does the underlying complaint have to be right?

No. A complaint that turns out to be wrong is still a protected act, provided it was made in good faith. The protection is lost only where the allegation was false and made in bad faith — a high bar that requires more than showing the allegation failed.

What is the difference between victimisation and harassment?

Harassment is unwanted conduct related to a protected characteristic that violates dignity or creates a hostile environment. Victimisation is a detriment imposed because someone did a protected act. The same facts can support both, but they are proved differently: victimisation turns on the reason for the treatment, not on its nature.

Can I be victimised after I have left the job?

Yes. The Equality Act extends protection to relationships that have ended, so a refusal to give a reference, or a deliberately damaging one, because a former employee brought a claim can amount to victimisation.

What is the deadline for a victimisation claim?

Three months less one day from the act complained of, or from the end of a course of conduct extending over a period, subject to ACAS Early Conciliation extending the clock. A tribunal can allow a late claim where it is just and equitable to do so, but that discretion cannot be relied on.

Why victimisation is a separate wrong

Discrimination law depends on people being willing to speak. If an employee who raises a race discrimination grievance can be sidelined, taken off good work or managed out for having raised it, the substantive protections become theoretical. Section 27 closes that gap by making the reprisal itself unlawful, independently of whether the original complaint was well founded.

The structure of a victimisation claim is different from the rest of discrimination law, and that difference is what makes these claims distinctive. There is no comparator to construct, no need to prove the claimant has a protected characteristic at all, and no requirement that the underlying allegation succeed. What has to be shown is a protected act, a detriment, and a causal link between them.

Because it does not depend on the claimant’s own characteristics, victimisation catches situations nothing else reaches. The manager who is passed over after giving witness evidence for a colleague’s claim. The employee who reported that a rota was being operated in a way that disadvantaged disabled staff and finds their shifts have quietly changed. In both, no protected characteristic of the claimant is in issue at all.

• Bringing proceedings under the Equality Act, giving evidence or information in connection with proceedings under it, doing any other thing for the purposes of or in connection with the Act, or alleging a contravention of it. The allegation does not have to use legal language — “I think I am being treated like this because I am disabled” is enough.
• Anything a reasonable worker would or might take to be to their disadvantage in the workplace context. It is a low threshold and does not require financial loss: exclusion from meetings, removal of responsibilities, a sudden and unexplained change in tone, or a disciplinary process started without cause can all qualify.
• The detriment must be
• of the protected act. This is the contested element in almost every case. The question is what consciously or unconsciously operated on the mind of the decision-maker, not whether the employer intended to punish anyone.
• The bad faith exception.
• Protection does not extend to a false allegation made in bad faith. Both limbs are needed: an allegation that was simply wrong, or that was mistaken but sincere, stays protected.

Proving the causal link

Employers rarely record a decision as being taken because someone complained. So victimisation claims are almost always proved by inference, and section 136 of the Equality Act is what makes that workable. Once the claimant establishes facts from which the tribunal could decide, in the absence of any other explanation, that victimisation occurred, the burden shifts to the employer to prove that the protected act played no part in the treatment.

What builds that initial case is usually chronology. A promotion discussion that was positive in February and evaporated in April, three weeks after a grievance. A performance concern raised for the first time after twelve unblemished months, and days after a witness statement was served. A change in who the claimant reports to, made without explanation, immediately after the complaint reached that person. Proximity in time is not conclusive, but it is where tribunals start.

The other half of the evidence is comparative. How did the employer treat others who had not done a protected act? A disciplinary process applied to this employee and not to a colleague who did the same thing is powerful. So is an inconsistent explanation: employers who give one reason in a grievance outcome, a different one in the

, and a third in the witness box tend to lose on causation without the claimant proving anything directly.

Practical consequence: preserve the record. Keep copies of the grievance, the acknowledgements, appraisals from before the complaint, and the messages that show the change afterwards. Send a short, factual email after any significant meeting recording what was said. Documents created at the time carry far more weight than a recollection given eighteen months later.

Remedies and deadlines

A successful victimisation claim in the employment tribunal can produce compensation for financial loss, and compensation for

assessed by reference to the

. There is no statutory cap on discrimination compensation, which is a significant difference from ordinary unfair dismissal. In the right case the tribunal can also award

and make recommendations to the employer.

The deadline is the ordinary discrimination time limit: three months less one day from the act complained of, extended by

. Where victimisation takes the form of a course of conduct rather than a single decision, time runs from the end of that course of conduct — but arguing that a series of events was continuing conduct is far less comfortable than issuing in time. Treat the

as running from the first detriment and work backwards from there.

A team leader gives a written statement supporting a colleague’s race discrimination grievance in March. He has no protected characteristic in issue himself. In April he is removed from the project he has led for two years and told it is a “refresh”. In May he is put on an informal performance plan after four years of good appraisals.

evidence given, March

removed from project, April

Claimant’s own characteristic

Employer’s explanation

changed between grievance outcome and ET3

Time limit runs from

April detriment, subject to ACAS

He does not have to show the colleague’s grievance was well founded, or that anyone set out to punish him. He has to show the statement he gave was a material influence on the decisions that followed. The two-year unbroken record before March, the four weeks between March and April, and the shifting explanation are what carry that argument.

Direct discrimination

Protected disclosure

Equality Act 2010, section 27

Equality Act 2010, section 108

Discrimination at work

Victimisation — Employment Tribunal Glossary

What counts as a protected act, what makes something a detriment, how the causal link is proved under the Equality Act 2010, and what a victimisation claim is worth.