Protected Acts

Hello again. Following the death of David Bowie it would have been amazing to bring you a case about the music or space industries. However, cases related to these topics are few and far between so here is a one about buses.

Today’s question

Can an employee suffer victimisation as a result of the protected acts of a third party?

The Claimant, Mr Thompson, was employed by the Respondent, London Central Bus Company, as a bus driver. At the time of his dismissal the Claimant was subject to a final written warning due to a prior disciplinary offence.

The Claimant was then dismissed for giving a company high-vis vest to another employee. He appealed the decision and was later given an unpaid suspension and further warning. During the appeal he apologised for his behaviour but afterwards the Claimant alleged that his treatment was victimisation by association.

The basis for this claim was that other employees in the same trade union as the Claimant were overheard by the Claimant discussing an apparent agenda by a manager to get rid of employees speaking out against racism within the Respondent. The Claimant believed that the incident with the vest was only brought up when he mentioned this conversation to the Respondent.

The Respondent believed the Claimant could not be victimised by association as the definition of victimisation is found in s.27 of the Equality Act, is described as:

(1) A person (A) victimises another person (B) if A subjects B to a detriment because –

(i) B does a protected act, or

(ii) A believes B has done, or may do, a protected act.

At a preliminary hearing the judge held that victimisation by association could stand as means to support a claim, as by being associated with the act meant the Claimant could have suffered a detriment. However, a second preliminary hearing was held and a different judge ruled that, despite being able to suffer victimisation by association, merely being in the same trade union and repeating a conversation was not a sufficient link between the Claimant and the protected act.

The case was struck out as it had no reasonable chance of success. The Claimant appealed. The EAT accepted the appeal stating that the ET was wrong to deem the link too tenuous to have a connection to the act. The EAT held that it was possible that being a member of an organisation which complained about discrimination could have led to the Claimant receiving detrimental treatment and therefore the claim should not have been struck out.

To answer today’s question, yes, an employee can be victimised due to the actions of a third party. However there must be a credible link between the employee and the third party. To read more cases about trade unions click here.