In Chalmers v Airpoint Ltd, the EAT upheld the Employment Tribunal’s decision that for an allegation to amount to a protected act the words used in making the allegation must be as clear and specific as possible.
Accordingly, when Mrs Chalmers, an HR worker at Airpoint Ltd, raised a written grievance that her employer’s actions “may amount to discrimination” her words were deemed insufficient to be a protected act for the purpose of a victimisation claim.
What is a ‘protected act’?
For a claimant’s victimisation claim to be successful, they must show that they have been subject to detriment either because they have committed a protected act or because someone believes they have committed or may commit a protected act. A protected act includes:
- bringing proceedings against another individual under the EQA 2010;
- giving evidence or information relating to such proceedings;
- doing any other thing for the purposes of or in connection with the EQA 2010; or
- alleging, expressly or otherwise, that an individual has not upheld the rules of the EQA 2010.
What does this mean for the case?
The Employment Tribunal dismissed the claim on the basis that Mrs Chalmers did not clearly state in her written grievance that the Equality Act had been breached. They found that ‘may’ was not assertive enough and her reference to discrimination rather than sex discrimination, not specific enough.
On appeal, this decision was upheld by the EAT. In their support of the Employment Tribunal’s decision, they focussed on the claimant’s experience within HR and with employee grievances, highlighting that her position meant she would have been aware of the specific language required when bringing a claim. They considered that she was articulate and well-educated and therefore that her vague language was not due to a lack of understanding of the concept of sex discrimination but rather evidence that she did not wish to assert sex discrimination in her grievance.
What does this mean for you as an employer?
While the decision here is positive news for employers as it demonstrates the tribunals’ readiness, in this particular case, to hold an employee to a high standard and require the use of clear and unambiguous wording, both the ET and the EAT stated this should not be seen as a blanket approach to victimisation claims. It is clear that whether an allegation raised in a grievance amounts to a protected act under the Equality Act 2010 will be decided by tribunals on a case by case basis. Emphasis was placed on the fact that the employee was well-educated in the legal procedure and that not all individuals raising the claim will have the same experience and knowledge. In the context of a less well-versed individual a bare allegation of discrimination could be interpreted as a protected act.
