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An employee who referred to “discrimination” without specifically referring to sex discrimination was not protected from victimisation

Makbool Javaid, Partner - Simons Muirhead & Burton

Mrs Chalmers, who worked in Human Resources, was one of two women employed by Airpoint Ltd. She raised a grievance to and about her manager, part of which read:

“I do not find you approachable of late, your manner is aggressive and unhelpful. As such I prefer to have a written record of work instructions. 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.”

Her grievance was not upheld, and she later brought claims of sex discrimination, including a claim that she had been victimised for having raised the grievance. Key to whether or not her victimisation claim was successful was the question of whether or not her grievance had disclosed a complaint or allegation that Mrs Chalmers had been discriminated against on the grounds of sex. If it had done so, the grievance would have been a protected act, and she would have been protected against victimisation.

The tribunal did not consider the grievance had included any complaint or allegation that discrimination legislation had been breached.

The factual context of this claim – including Mrs Chalmers’ HR background and education – meant that the tribunal was entitled to find that her ambiguous wording did not amount to a complaint of sex discrimination. Employers should usually treat any mention of discrimination by an employee as a red flag and ensure they do not treat the employee detrimentally as a result.

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