In a recent case called Kokomane v Boots Management Services, the Employment Appeal Tribunal (EAT) held that, when considering whether a ‘protected act’ has occurred in a victimisation claim, tribunals should always consider the wider context.
The Claimant brought a claim of victimisation against the Respondent. The alleged ‘protected acts’ were an initial grievance where she alleged that she had been treated differently to her colleagues related to an allegation of shouting, and a later grievance where she had complained that the original grievance had not been acted on and also alleged bullying. She did not expressly state that she felt that the difference in treatment was due to her race.
The EAT held that the allegation relied on as a ‘protected act’ need not state explicitly that an act of discrimination has occurred. All that is required is that facts should be asserted which are capable in law of amounting to an act of discrimination. When faced with a situation where the protected act is not a straightforward express discrimination allegation, tribunals should ask the question:
What would the Respondent have understood the complaint to mean from the information provided by the Claimant as part of her complaint?
That understanding would include the factors which were known to the Respondent. Those factors would, in this case, have included the fact that the Claimant was the only black employee, the content of the grievance letter alleging difference in treatment, and the discussions at the grievance meeting where the fact that shouting may be connected to black women in a negative way was raised.