Charlotte McBride, Senior Associate at specialist employment law firm Collingwood Legal, looks at why a recent Employment Appeal Tribunal decision on victimisation is important for employers and shares some pointers for handling tricky grievances.
The recent EAT case of Kokomane v Boots Management Services Ltd has shone a spotlight on the importance of how employers interpret grievances and made clear that employees don’t need to explicitly allege discrimination to be protected from victimisation.
What happened?
In short, Ms Kokomane worked as a Customer Assistant for Boots in a store where she and only one other employee, a relief pharmacist, were non-White. After a workplace incident in which Ms Kokomane was accused of shouting, she raised a grievance complaining that the pharmacist had treated her differently when dealing with the allegation.
A second grievance followed, in which Ms Kokomane complained about the handling of her earlier grievance and alleging bullying by the pharmacist. Again, the outcome was not in her favour. A year later, she was made redundant which she claimed at Tribunal was victimisation.
What the law says
Under the Equality Act, victimisation occurs when someone is treated detrimentally because they’ve made (or are believed to have made) a “protected act”. This includes raising complaints about discrimination which could be informally or via internal channels like a grievance.
The key issue in this case was whether a complaint must explicitly say it relates to discrimination – for example, stating that something was “racist” or “sexist” – to count as a protected act.
The Tribunals’ decisions
The Employment Tribunal initially rejected her claim. It concluded that because she didn’t clearly state that her treatment was because of her race, her grievance didn’t qualify as a protected act.
On appeal, the EAT found that the Tribunal had taken too narrow a view. Complaints didn’t need to use legal terms like “discrimination” or specify a protected characteristic (such as race or sex). Instead, what matters is whether, taken in context, the complaint raises issues that could reasonably be interpreted as being about discrimination.
Importantly, the EAT noted that during her grievance Ms Kokomane had referred to a stereotype often applied to Black women of being “shouty” or “too loud”. This, coupled with her comments about being treated differently and the very limited ethnic diversity at her workplace, should have been enough to put her employer (and the Tribunal) on notice that the grievance concerned potential race discrimination.
Why this matters for employers
This decision is a helpful reminder that employers should listen carefully to what is meant, not just what is said. An employee doesn’t need to use the word “discrimination” or cite the Equality Act for their complaint to be a protected act.
If there’s a reasonable link to a protected characteristic – like race, sex, or disability – it could trigger legal protections.
Practical steps for employers:
Context is king. If an employee complains about being treated differently, consider all the circumstances – might their concerns relate to discrimination, even if it isn’t stated outright?
Train your managers. Being able to spot the signs of potential discriminationrelated complaints, even where the language used is subtle or non-legal, is pivotal.
Take grievances seriously. If there’s any chance that an issue relates to discrimination, deal with it thoroughly and sensitively.
Avoid retaliation. Any adverse treatment of an employee who has raised such concerns could lead to a costly victimisation claim.
Document your reasoning. Whether you’re handling a grievance or taking any action that could affect someone who has raised concerns, make sure your decisionmaking is well documented and based on fair, objective criteria to minimise your risk.
If you’d like advice on grievance procedures, discrimination risks or how to navigate complaints fairly, the team at Collingwood Legal is here to help.
www.collingwoodlegal.com