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Employment Law Cases
Protected acts: specificity of alleged discrimination
Chalmers v Airpoint Ltd
An employee’s comment in a written grievance that her employer’s actions ‘may amount to discrimination’ was insufficient to amount to a protected act under the Equality Act for the purposes of her victimisation claim.
The Equality Act (s. 27) states that a person is victimised if he or she is subjected to a detriment because they have performed a ‘protected act’.
Ms Chalmers worked as a Business Support Manager and carried out some HR functions. She lodged a grievance via email about her line manager, complaining about her exclusion from two work events. The email stated that she considered that both acts ‘may be discriminatory’. The grievance wasn’t upheld and she lodged a tribunal claim of sex discrimination and victimisation. The protected act she relied upon was the sending of the email because, she argued, it alleged that her employer had breached the Equality Act by discriminating against her.
Her claim was dismissed by the tribunal which held that there was no protected act on which her victimisation claim could be based because there was no allegation of a breach of the Act. Although she had claimed that the acts ‘may be discriminatory’, there was no complaint or allegation that someone had contravened the Act. Ms Chalmers appealed, arguing that the tribunal had wrongly interpreted her email as a complaint of general unhelpfulness on the part of her manager and had ignored ‘her explicit statement’ of sex discrimination.
The appeal was dismissed.
The tribunal was entitled to take into account the fact that Ms Chalmers worked in HR and was articulate and well educated. Her use of the word ‘may’ (which usually signified doubt or uncertainty) and her failure explicitly to refer to sex discrimination could be contrasted with the fact that she had complained in clear terms about other matters in her grievance. Whilst the EAT accepted that the words ‘may be discriminatory’ could be taken as a positive affirmation of discrimination, it held that the tribunal as the finder of fact was entitled to reach the conclusion it did and such a decision was not perverse.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0031_19_1612.html
It is important to remember the limitations of an appeal to the EAT – a decision can only be overturned if the law is wrong or if there is perversity. Here the tribunal came to a decision based on the specific facts of this case and so the EAT had no ability to overturn those findings of fact.
This case was very much fact sensitive and not one upon which a great deal of reliance should be placed. The ambit of s. 27 is wide - s. 27(2) (d) specifically states that ‘making an allegation (whether or not express)’ that someone has breached the Act is a protected act.