Making allegations clear for a protected act

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Chalmers v Airpoint Ltd and others

Under the Equality Act 2010 it will be unlawful victimisation if an employee is subjected to a detriment because they have made an allegation the employer is in breach of the Act or is guilty of discrimination. The allegation will be a ‘protected act’. In the case of Chalmers v Airpoint Ltd and others the issue was whether the employee’s own knowledge and circumstances could be taken into account when assessing whether the allegation had been made sufficiently clear to be protected. 

A claim for sex discrimination

Mrs Chalmers, a business support manager was also responsible for HR issues. She had complained after the Christmas party was organised for a day when she could not attend. She had pointed out that the only other female in the office could also not attend on that date.  In her letter she stated that her work was mostly ignored and that “I have been excluded from both the Christmas night out and from the hardware refresh, neither of which is acceptable to me and both of which may be discriminatory." 

Claim dismissed

Her claim for sex discrimination was dismissed and it was held that her letter of complaint did not amount to a protected act. She had alleged only that the employer’s actions ‘may be discriminatory’. Taking into account Mrs Chalmers’s experience in HR it would have been expected that she would have asserted that she had been discriminated against on grounds of sex or that there had been a breach of the Equality Act 2010. Simply referring to ‘may be discriminatory’ was not sufficient.

Key takeaway point

An Employment Tribunal is entitled to take into account the context of a complaint and assess how the particular claimant could have been expected to express the complaint. This is an important point for claimants to take into account. However employers will still need to be alert to any risk that a complaint does raise an allegation of discrimination and ensure that it is properly addressed as whilst it may not be clear and unambiguous it may still be held to amount to a protected act. 

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