When considering whether a ‘protected act’ has occurred in a victimisation claim, tribunals should always consider the wider context

In Kokomane v Boots Management Services, the Claimant brought a claim of victimisation against the Respondent alleging her grievances were ‘protected acts’ under the Equality Act 2010.

The case in the Employment Tribunal

The Claimant was employed at the Boots’ Sheerness store. She raised an initial grievance in April 2020 after being accused of shouting in the workplace, alleging she was being treated differently to colleagues. She later raised a second grievance in October 2020 complaining that her first grievance had not been acted on and alleging she had been bullied by her pharmacist colleague.

The Claimant did not explicitly state in either grievance that she felt that the difference in treatment was due to her race. However, the notes of the grievance hearing recorded that she had said that “black women and girls were known to be loud” and had alleged that negative stereotypes about black women and shouting may have influenced how she was treated.

The Employment Tribunal rejected the Claimant’s victimisation claims concluding that her grievances did not amount to ‘protected acts’ because they did not contain a direct reference to race discrimination.

The case in the Employment Appeal Tribunal

The Claimant appealed to the Employment Appeal Tribunal (EAT) which allowed her appeal. The EAT said that while a tribunal is not required to assume that any allegations of difference in treatment are about race solely because a claimant is the only black employee, where a complaint is oblique, the context becomes important and needs to be carefully analysed.

The EAT therefore ruled that:
• A complaint need not explicitly reference discrimination to qualify as a “protected act”.
• Tribunals must consider the full context – including what the employer knew at the time.
• The test is: what would the employer reasonably have understood the complaint to mean, in light of the circumstances?

The EAT felt that those factors would, in this case, have included the fact that the Respondent knew that the Claimant was the only black employee, the content of the grievance letter alleged difference in treatment, and the discussions at the grievance meeting where the fact that shouting may be connected to black women in a negative way was raised.

The EAT felt that the employment tribunal did not appear to have considered this context in sufficient detail in concluding that the Claimant had not done a protected act, and the EAT remitted to case to the employment tribunal to consider.

The Employment Appeal Tribunal emphasised the need for a contextual approach when assessing whether an employee has executed a “protected act” for the purposes of a victimisation claim under the Equality Act 2010.

Context important when determining whether there has been a “protected act”

Employers should be mindful that an employee may have protection against victimisation where they have made a complaint about something that could be an act of discrimination – even though they have not made an express allegation of discrimination.

This case shows that the threshold for what qualifies as a ‘protected act’ is not as high as some employers might assume. It serves as a reminder to employers of the importance of recognising and responding appropriately to potential discrimination complaints – even if they do not explicitly use the word ‘discrimination’.

The context should always be kept in mind and an employer should consider what a complaint might reasonably mean, not just what is written. Where an employer is not sure if an employee is alleging discrimination, but context suggests this may be the case, one option is for the employer to ask the employee directly to address this during the internal process, hopefully negating the need to incur the cost and time of a tribunal hearing.

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