How can employers avoid accusations of victimisation? Elliot Gold investigates
Perhaps Oscar Wilde was thinking of litigation letters in employment tribunal claims when he mused that in matters of grave importance, style, not sincerity, was the vital thing. It is clear that an employer is not permitted to victimise its workers on account of them bringing a discrimination claim. However, what amounts to victimisation in the context of an imminent or ongoing claim is not always a piece of cake.
Provisions against victimisation are contained in the Sex Discrimination Act 1975 (SDA 1975), s 4. They are similar to those contained in other legislation relating to other forms of discrimination.
To demonstrate the existence of victimisation, a worker must demonstrate:
- that they had performed a “protected act”;
- as a result, their employer had treated them less favourably; and
- the less favourable treatment was “by reason that” the worker had done the protected act.
The mischief against which this guards is clear, even if the third hurdle can be difficult to surmount. As Lord Nicholls stated in Chief Constable of the West Yorkshire Police v Khan [2001]
