Kokomane v Boots Management Services Ltd

In this case, the Employment Appeal Tribunal (“EAT”) decided that the Employment Tribunal (“ET”) used too narrow a definition of what could amount to a “protected act” for victimisation claims under the Equality Act 2010, and did not properly analyse the context in which the complaint was made, including the way in which the employer would have understood the complaint.

The Claimant was the only black employee employed at the Respondent’s Sheerness store. She raised a written grievance complaining of differential treatment from her manager and being accused by them of “shouting” during a work incident. Later in her grievance hearing, the Claimant referred to black women being “known to be loud”.

Around the same time, the Claimant was dismissed due to redundancy and subsequently brought ET claims which included allegations that her redundancy selection and dismissal amounted to victimisation on grounds that she had made complaints of unlawful discrimination (referred to in the legislation as “protected acts”). For the purposes of her victimisation claim, she relied on two protected acts: her written grievance and a grievance hearing a year after, which related to a complaint of nothing being done in respect of the first grievance. The Claimant’s claim form set out that she was the only black employee and that she had been bullied whilst others had not been.

The ET decided that the grievance and grievance hearing did not amount to protected acts because the Claimant did not expressly refer to the protected characteristic of race or discrimination.

This was overturned on appeal. The EAT stated that the law clearly requires the ET to consider context. It assessed the victimisation provisions in the Equality Act and highlighted previous case law which indicated that Parliament must have intended that protection should arise from the making of the complaint and that this should not depend on how the complaint is articulated. Other race discrimination case law also made similar points, including that the word ‘race’ does not have to necessarily appear in a complaint.

The EAT stated “what is necessary is that the ET should take account of all of the factors that are provided in the information given by the employee to the employer” and that the ET needs to consider such information “on the basis of how it would be understood by the employer in context”. This includes general facts about the employee and the place of work. Although it would not be sufficient for the Claimant to merely point out she was a different race to others, the fact that she was the only black employee, that she had pointed out she was being treated differently as part of a grievance, and that the notes of the grievance hearing raised a negative stereotype, provided a broad context which the ET was required to consider and analyse. The case has returned to the same ET to reconsider.

This case demonstrates the importance of context when dealing with grievances, and that it is possible for a protected act to be made out even if the protected characteristic or reference to discrimination are not explicitly raised in an employee’s complaint. When considering whether a complaint constitutes a protected act, it is therefore important to not only consider the specific words used but also the broader context and circumstances in which the complaint is made.