Allegation that act ‘may be discriminatory’ may be insufficient for victimisation claim (Chalmers v Airpoint Ltd)

If a person makes an allegation (which may be express or implied) that there has been a contravention of the Equality Act 2010 (EqA 2010) then that is a protected act and they are protected from being victimised because of it. However, stating that a particular act ‘may be discriminatory’ may not amount to a protected act capable of founding a claim of victimisation because, depending upon the circumstances, it may not amount to an allegation that there has been a breach of the EqA 2010, according to the EAT.

Chalmers v Airpoint Ltd (UKEATS/0031/19/SS)

What are the practical implications of this judgment?

This judgment is perhaps a surprising one in holding, in the context of a victimisation claim, that an employee who uses the phrase ‘may be discriminatory’ (describing their treatment by their manager) rather than ‘is discriminatory’ (or ‘is discriminatory because of protected characteristic X’, e.g. ‘is sex discrimination’) has not made at least an implied allegation that there has been a contravention of the Equality Act 2010 which is sufficient to constitute a protected act on which a victimisation claim may be founded.

However, the basis on which the EAT dismissed the appeal is that the conclusion by the employment tribunal that there was no protected act was one which was open to them on the evidence before them and hence, on appeal, it could not be said that that conclusion was perverse. Hence the EAT acknowledged that a different tribunal may have come to a different conclusion and that it will depend upon the particular circumstances in each case.

Employees considering a victimisation claim must accordingly be clear that the necessary threshold has been passed such that there is a protected act on which the claim may be founded. They should also be aware that, in interpreting words used by a claimant (where it is asserted that those words were making an allegation that amounted to a protected act), a tribunal is likely to look at factors such as in this case to determine that issue including, for example, how articulate and educated the employee is, what their work experience is and what the natural interpretation of those words might be.

Case details

• Court: Employment Appeal Tribunal
• Judge: Lord Summers
• Date of judgment: 26 January 2021

Pro Employment Law

Formed in 2017, following significant legislative changes designed to increase competition within the legal services marketplace, Pro Employment Law is a progressive set of barristers’ chambers, consisting only of experienced employment law barristers, offering a full range of specialist advisory, case management, and advocacy services directly to the public through the Public Access scheme. We supply our legal services exclusively in the area of Employment Law to clients located across England & Wales. All of the legal services we supply are covered by professional indemnity insurance with Bar Mutual.