Key Facts

The Claimant, a black man of Nigerian origin, was employed as a Prison Officer. When he started employment he made a claim for race discrimination against his employer which was settled. During the remainder of his employment he decided to bring a further 5 sets of race discrimination claims against various work colleagues and HMPS. Of those claims, 4 costs orders were made against the Claimant employee (hereafter ‘the employee’) as the Tribunal found that he had been pursuing the claims with no prospect of success. In one of these, the Tribunal found that the employee’s purpose was not to succeed in the claim but rather to harass his employer. That finding by the Employment Tribunal effectively led to the dismissal of the employee by the Prison Governor. The Governor felt that the employee’s pursuit of the claims in order to harass the employer into making settlement (which caused stress for those individual staff members involved and put a strain on HMPS) had destroyed mutual trust and confidence.

The employee brought proceedings that the dismissal amounted to “victimisation” under the Race Relation Act. The Tribunal in the first instance found that part of the claim for unfair dismissal succeeded. This was because one allegation was genuine (despite the fact that it found that many were not held in good faith and were false). The employer appealed the decision to the Employment Appeal Tribunal. The Employment Appeal Tribunal over-turned the Tribunal’s decision.

Comment

Section 2(1) of the Race Relations Act says that victimisation is the less favourable treatment of a person by reason that he or she has done a protected act. Protected acts include bringing proceedings under the Race Relations Act. The protection however does not apply in respect of any allegations made by a Claimant which are false or not made in good faith. The leading case on the area says that the words “by reason that” necessarily require an enquiry into the motivation of the alleged discriminator in carrying out the act in question and that this is a question of fact for a Tribunal.  

The EAT in this case clarified that the test for victimisation was essentially three-fold. Firstly, was there a protected act (in this case there was). Secondly, had there been less favourable treatment (in this case there was). The third part of the test however was that the EAT considered that the Tribunal erred in holding that the dismissal was necessarily by reason that he had done the protected act. The EAT clarified that the correct test is to ask why the alleged discriminator acted as he did. The Tribunal’s error was to conclude that because he had issued proceedings under the protected act, this necessarily led to the Claimant’s dismissal. It held that the reason for the dismissal was not simply that the Claimant had brought the claim, but that it had been brought to harass the employer and its employees and, as such, the victimisation provisions of the Race Relations Act were not designed to protect this situation.

The clarification of the law by the Employment Appeal Tribunal will no doubt assist motor industry employers defending claims relating to victimisation brought by Claimants who can be shown to be acting maliciously.