The Broader Context of an Employee’s Complaint to be considered when assessing Victimisation (Kokomane v Boots Management Services)

Ms Kokomane had submitted two grievances: one alleging she had been treated differently from other staff members following an accusation of shouting, and a second raising concerns about bullying and the employer’s failure to act on her initial complaint. Although she did not explicitly allege race discrimination, she was the only black employee in her team, and there were issues of racial stereotyping raised, including around perceptions of black women being particularly loud.

Ms Kokomane was selected for redundancy in May 2021, a decision she says was linked to the grievances she had filed prior to this decision. She contends that the timing and circumstances of her dismissal suggest she was penalised for raising concerns regarding racial stereotyping. She claimed her selection and dismissal for redundancy amounted to a detriment and she had been victimised.

Under the Equality Act 2010, if a person is subjected to a detriment as a result of doing a “protected act” then it amounts to victimisation. A protected act includes making an allegation that there has been some form of discrimination. Ms Kokomane’s position was that her grievances were protected acts as they alleged race discrimination.

The original Employment Tribunal held that these grievances did not constitute acts that were protected under the Equality Act 2010 – race discrimination was not expressly spelt out. However, the Employment Appeal Tribunal (the EAT) overturned that decision, emphasising that a complaint need not expressly state that discrimination has occurred. It is sufficient if the facts asserted are capable in law of amounting to an act of discrimination. The EAT clarified that tribunals must adopt a contextual approach when deciding whether a claimant has carried out a ‘protected act’ in a victimisation claim.

Where the alleged protected act is not a clear, express allegation of discrimination, tribunals should ask: what would the employer have understood the complaint to mean, based on the information provided? In this case, that included Ms Kokomane’s status as the only black employee, the grievance alleging differential treatment, and the discussion during the grievance meeting linking perceptions of shouting to racial stereotypes.

The ruling therefore confirms that tribunals must consider the wider circumstances in which complaints are made. Importantly too for employers, this decision emphasises the importance of considering the context in which employee complaints are made. Although Ms Kokomane did not explicitly reference discrimination, her complaint was still found to constitute a protected act given the context and comments made within the grievance. Employers should therefore look carefully at the circumstances and what the employee says to ascertain if it is a complaint of discrimination (and hence protected).

If you would like to discuss or need help with allegations of discrimination or grievances, please do get in touch with our Employment Team on 020 8290 0440 (Bromley) or 01732 496 496 (Sevenoaks) or employment@thackraywilliams.com.