Labour & European Law Review Weekly Issue 327 11 July 2013
The Equality Act 2010 states that victimisation occurs when someone is subjected to a disadvantage for doing a “protected act”, such as bringing proceedings under the Act. In Woodhouse v West North West Homes Leeds Ltd, the Employment Appeal Tribunal (EAT) held that, if a claim was not made “in bad faith”, it could not be excluded from the definition of a “protected act”.
Mr Woodhouse transferred over from the employment of Leeds City Council to West North West Homes Leeds Limited (WNWHL) in 2003 when it started managing the council’s housing stock.
Between 2005 and 2010, he lodged ten grievances alleging race discrimination, all of which were rejected by his employer. He was dismissed at the end of October 2010, on the basis that, as he had lost all trust and confidence in WNWHL, there was no possibility of a “sustainable working relationship going forward”.
Mr Woodhouse had already lodged a series of complaints with a tribunal alleging racial discrimination during the course of his employment. Following his dismissal, he lodged further claims of unfair dismissal and victimisation.
The tribunal rejected nearly all his complaints, saying that he had “repeatedly brought forward empty allegations without any proper evidential basis or grounds for his suspicion”, albeit not in “bad faith”.
Although it found that he had been unfairly dismissed (his employer had not warned him that his job was at risk), the tribunal said that his dismissal was not an act of discrimination. As his poor health meant that his chances of staying in a job with WNWHL were about ten per cent, his compensation should be reduced accordingly.
Nor had he been victimised by his employer for bringing such a large number of complaints against them because “another employee who had made non-racial grievances would have been treated in the same way”. As his grievances were unfounded, he had not been treated “less favourably”.
Mr Woodhouse had not therefore been dismissed on account of his conduct in bringing the grievances, but because of his loss of trust and confidence in his employer.
Mr Woodhouse appealed against the decision that he had not been victimised as well as the reduction in his unfair dismissal award.
And the EAT agreed with him. In relation to the victimisation claim, the EAT said that the tribunal had used the wrong approach on two counts. Firstly, “less favourable" treatment was no longer a component of "victimisation" under the Equality Act 2010. The tribunal should instead have asked whether Mr Woodhouse's conduct had played any significant part in the decision to dismiss him. Secondly it had used an “unhelpful comparison” to answer a question that did not require a “comparative analysis”.
The tribunal had also failed to realise that, if Mr Woodhouse had not brought the complaints “in bad faith”, they automatically became protected acts under the Equality Act. As he was dismissed for doing those acts, his complaint of victimisation had to succeed.
As it had quashed the victimisation finding, the EAT held that the reduction in his compensation was unsustainable and also quashed the finding that it should be reduced by 90 per cent.
Mr Woodhouse’s numerous discrimination grievances were unfounded but still protected. This is because he genuinely believed what he was saying and so they were made in good faith. Dismissing him in fear of more down the line logically rested on the fact he had a history of complaints and was therefore discriminatory. It’s a decision which will dismay any employer faced with an employee who is alone in thinking that their grievance is reasonable, but it does support a genuinely aggrieved employee who has to fight their battles across several fronts.