In order to successfully claim victimisation under the Equality Act, claimants have to show that they carried out a “protected act” based on a protected characteristic, such as sex. In Chalmers v Airpoint, the Employment Appeal Tribunal (EAT) held that, in the circumstances of the case, it was not enough to claim victimisation on the basis of a grievance which did not make reference to a breach of the Act.

Basic facts

Ms Chalmers was a business support manager who also carried out some human resource (HR) functions for Airpoint. The company employed 15 people in total, based in Leicester and Glasgow. There was only one other woman in addition to Ms Chalmers in the Glasgow office.

Ms Chalmers alleged that she had been discriminated against when the company organised a Christmas party in mid-December 2016 which neither she nor her female colleague could attend. She lodged a grievance with her line manager, Mr Hughes, saying in her email of late January 2017 that:

“I do not find you approachable of late, your manner is aggressive and unhelpful. … My work is mostly ignored and 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." The grievance was not upheld.

Ms Chalmers then lodged a tribunal claim for unlawful sex discrimination and victimisation (among other things) on the basis that her grievance was a protected act under the Equality Act 2010 since it alleged that she had been discriminated against on the ground of sex, a protected characteristic.

The company denied the claim, pointing out that it was only after extensive arrangements (which included booking flights and hotels) had been made that Ms Chalmers indicated that she could not attend. At no point had she said that she thought the arrangements were discriminatory.

Tribunal decision

The tribunal dismissed her claim holding that her grievance did not include a complaint or allegation that her employer had contravened the Equality Act. Although it referred to events that might be “discriminatory”, it also included a general complaint about her manager’s attitude towards her. Given that Ms Chalmers was experienced in HR and was “articulate and well educated”, it seemed to the tribunal that had she wanted to assert sex discrimination in the grievance she would have done so.

She appealed, arguing that the tribunal was wrong to conclude that the reference to discrimination in her email was a reference to discrimination in general. Although she had referred to her manager’s “general unhelpfulness and aggression”, it should have been clear to the tribunal that the reference to discrimination was a reference to sex discrimination. The reference to unhelpfulness and aggression should have been interpreted as a separate complaint not as an example of discriminatory behaviour.

EAT decision 

Dismissing the appeal, the EAT held that the tribunal was entitled to interpret Ms Chalmer’s use of the word “may” according to its natural meaning. In other words, to signify doubt or uncertainty. The failure to refer to “sex” discrimination also supported its conclusion that she had not claimed sex discrimination.

And although the tribunal did not spell out what significance it attached to her experience in HR, it clearly thought it was relevant in the sense that it qualified her to take an informed view as to whether her non-invitation to the Christmas night out was an act of discrimination on the ground of sex or not. That being so her failure to assert sex discrimination in the email undermined her submission that the email was an explicit allegation of it.

It followed that her claim of victimisation could not succeed because the tribunal had not found that there had been a protected act.