Vague “Discrimination” Claims

Durrani v London Borough of Ealing

In this case, the Employment Appeal Tribunal (“EAT”) looked at whether an employee making a generic complaint of unfair treatment (without any link to a protected characteristic) is a protected act for the purposes of a victimisation claim under the Equality Act 2010.

The Claimant was a Housing Benefits Visiting Officer, who was made redundant. Prior to his dismissal, he lodged a formal grievance complaining of bullying and harassment. His grievance did make reference to “discrimination”, but did not refer to his race (being a protected characteristic).

The Claimant made various claims to the Employment Tribunal, including for unfair dismissal on a number of grounds, that he had been subjected to detriments and dismissal because he had blown the whistle, and race discrimination, including victimisation.

The Tribunal dismissed a number of the allegations but the Claimant alleged that, although the Tribunal had dismissed the other claims for race discrimination, it had failed to deal specifically with his victimisation claim.

In order to succeed in a claim for victimisation, an employee must show that he was subjected to a detriment because he has done a protected act (or that the employer believes that the employee has done or may do a protected act).

The Claimant in this case alleged that the protected act was that he had made an allegation in his grievance about discrimination.

The EAT found that the Tribunal had rejected the Claimant’s claim for victimisation, and that it was entitled to do so. The EAT referred to the fact that the Claimant had never, throughout his employment, raised racial discrimination as a complaint. His grievance did refer to unfair treatment and general “discrimination”, but did not mention, or infer, that the Claimant felt that this was due to his race.

Indeed, when the Claimant was asked to confirm the basis of his grievance relating to “discrimination” he confirmed that his complaint was of general unfair treatment.

The EAT did comment that the case should not be taken as any general endorsement for the view that where an employee simply complains of “discrimination” he has not done enough to bring a successful claim for discrimination. In reality, it is likely to depend on the particular circumstances. If an employee does not specifically refer to a protected characteristic but it is clear that this is what is being inferred, a Tribunal is likely to view such a complaint as a protected act.