EAT VICTIMISATION
C, a legal secretary in a firm of solicitors, as a result of mental illness makes false allegations against partners of discriminatory conduct (contrary to SDA and DDA) – Unwilling to accept that allegations untrue – Medical advice of risk of recurrence – Rs decide to dismiss – Claim of victimisation – Rs accept that allegations made ‘in good faith’ within meaning of s. 4 (2) of SDA and s. 55 (4) of DDA
Claim dismissed by Tribunal, which holds that the true reason for the dismissal was not that the C had made allegations of discrimination but the continuing mental ill health demonstrated by their (unacknowledged) falsity and the consequent risk of further disruptive behaviour
Appeal dismissed – The distinction relied on by the Tribunal was valid – Chief Constable of West Yorkshire Police v. Khan distinguished – Further held that Tribunal right not to apply a ‘but for’ test: Amnesty International v. Ahmed and R (E) v. Governing Body of JFS followed – Discussion of terminology of ‘motivation’ in JFS.
Underhill P explained: ‘In such cases it is neither artificial nor contrary to the policy of the anti-victimisation provisions for the employer to say ‘I am taking action against you not because you have complained of discrimination but because of the way in which you did it’. Indeed, it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint . . Of course, such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had say, used intemperate language or made inaccurate statements. An employer who purports to object to ‘ordinary’ unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately advanced made in some cases does not mean that it is wrong in principle.’
Judges:
Underhill P J
Citations:
[2010] UKEAT 0086 – 10 – 0812, [2011] ICR 352
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Hewage v Grampian Health Board SC 25-Jul-2012
The claimant had been employed as a consultant orthodontist. She resigned claiming constructive dismissal and sex and race discrimination. The EAT reversed the findings on discrimination saying that they had not been sufficiently pleaded. The Court . .
Cited – NHS Manchester v Fecitt and Others CA 25-Oct-2011
The appellant challenged reversal by the EAT of a finding that it had not unlawfully victimised the respondents for the making of a protected disclosure. The claimant had reported a co-worker exaggerating his qualifications. After repeated . .
Cited – Woodhouse v West North West Homes Leeds Ltd (Race Discrimination) EAT 5-Jun-2013
EAT RACE DISCRIMINATION – Victimisation
The judgment of this Tribunal in Martin v Devonshire Solicitors [2011] ICR 352 should not be used as a template into which to fit the factual aspects of a case in . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 10 July 2022; Ref: scu.427307