In the case of Kokomane v Boots Management Services, the Employment Appeal Tribunal (EAT) had to consider whether the Claimant (Ms Kokomane) had done a “protected act.” This was essential as to bring a claim for victimisation, a protected act must have occurred to trigger any detrimental treatment which follows.
Knowing what constitutes (or could constitute) a protected act is helpful for employers as it will enable them to mitigate any risks at an early stage and hopefully avoid having to engage in costly legal processes.
The Law regarding Protected Acts
A protected act, in the context of a victimisation claim, means taking action which is related to discrimination legislation. This includes:
- Raising a complaint about discrimination or harassment
- Supporting someone else’s complaint
- Gathering information which may lead to a complaint
- Acting as a witness in a complaint
- Saying something or giving evidence that does not support someone else’s complaint
The current legal framework also protects an individual from victimisation when someone thinks that individual has done or intends to do any of the above.
The Facts of the case in Kokomane v Boots Management Services
Ms Kokomane, a young black woman, raised a grievance after she was accused of shouting in the workplace. She alleged that she was being treated differently to her colleagues. A few months later, she raised a further grievance, alleging that nothing had been done about her initial grievance. She also raised bullying allegations.
Neither grievance specifically alleged that the difference in treatment was on the grounds of her race although, during the grievance process, Ms Kokomane noted that negative stereotypes about black women and shouting may have influenced the way in which she was treated. She subsequently brought a claim of victimisation against Boots Management Services (Boots), stating that her grievances were “protected acts” under the Equality Act 2010.
The Employment Tribunal’s Finding
The Employment Tribunal (ET) rejected Ms Kokomane’s claim, finding that her grievances could not amount to “protected acts” as they did not expressly refer to race discrimination.
Mr Kokomane appealed this finding to the EAT who upheld her appeal. The EAT found that the ET had too narrowly construed what could amount to a protected act and did not afford sufficient weight to the wider context in which the complaint was raised. In particular, it noted that:
- A complaint does not need to explicitly state that an act of discrimination has occurred for it to amount to a “protected act”.
- The ET must consider the relevant information based on how it would be understood by the employer in context.
In relation to two (above), Boots was aware that Ms Kokomane was the only black employee, she had raised concerns about a difference in treatment and that the grievance meeting notes raised an issue that shouting may be connected to black women in a negative way. As such, the EAT found that that ET should have approached its review of the evidence with this wider context in mind.
The EAT went on to note that, if a protected act is not a straightforward express allegation of discrimination, then the Tribunal should ask itself “what would the respondent have understood from the complaint or would have understood the complaint to mean from the information provided by the claimant as part of her complaint.” This would include the racial make-up of its workforce and any discussions at grievance meetings, for example.
The Key Takeaways
This case is a stark reminder to employers of the need to consider any potential discrimination complaints in the round; that is, by looking at the wider context of the complaint to ascertain if it could amount to a protected act. Clearly, as evidenced by the EAT’s judgment in this case, the definition of a “protected act” is wider than some employers may realise. As such, recognising any such potential complaints at an early stage will help to minimise the risk of victimisation claims being raised at a later stage.