Guidance

Chapter 9 - Victimisation and other unlawful acts

Published: 2 October 2024

Last updated: 2 October 2024

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Introduction

9.1 This chapter explains what the Act says about the unlawful acts of:

  • victimisation
  • instructing, causing and inducing discrimination
  • aiding contraventions

Victimisation

9.2 Victimisation does not cover treatment connected to a person’s protected characteristic but is intended to protect those who use their rights under the Act or help others to do so.

What the Act says

9.3 The Act prohibits victimisation. It is victimisation for a service provider, person exercising a public function or association to subject a person to a detriment because the person has done a ‘protected act’ or because the service provider, person exercising a public function or association believes that the person has done or may do a protected act in the future (s.27(1)).

9.4 An individual need not have a particular protected characteristic to be protected against victimisation under the Act. To be unlawful, victimisation must be linked to a ‘protected act’ (read paragraph 9.5). Only individuals (not organisations) are protected from victimisation.

What is a ‘protected act’?

9.5 A protected act is any of the following (s.27(2)):

  • bringing proceedings under the Act (s.27(2)(a))
  • giving evidence or information in connection with proceedings brought under the Act (s.27(2)(b))
  • doing anything which is related to the provisions of the Act (s.27(2)(c))
  • making an allegation (whether express or not) that another person has done something in breach of the Act (s.27(2)(d))

Example

9.6 A gay man sues a publican for discrimination on the basis that she makes persistent derogatory remarks to other customers about his sexuality. The publican bars him from the pub altogether because of this claim. This would be victimisation.

9.7 In the example in paragraph 9.6, if another customer complains to the pub about the unfair treatment of the gay customer because of his sexuality and the publican then bars this second customer, this would also be victimisation. The sexual orientation of the second customer would be irrelevant.

9.8 Protected acts can occur in any field covered by the Act and in relation to any part of the Act. For example, a service provider must not victimise a person who has done a protected act in the field of employment.

9.9 Making an allegation or doing something related to the Act does not have to involve an explicit reference to the legislation (s.27(2)(c) and (d)).

Example

9.10 The mother of a two-year-old disabled child complains to the staff at a children's centre that her daughter’s physical and social needs are not being properly met. As the centre is provided by the local authority children's services department, the mother also complains to her councillor and to the Director of Children’s Services. The centre's staff invite her to a meeting, after which the care of her daughter improves.

The following summer, she applies to go on a trip to the seaside for parents with their disabled children organised by the department but is turned down. She believes that she has been victimised because of her complaint about the care of her daughter. Although she did not refer explicitly to the Act when she complained, she asserted that her daughter had been treated less favourably because of a protected characteristic. That is sufficient for her complaint to be a protected act.

9.11 In the above case, if the mother’s complaint had not referred to her daughter’s disability (for example, if she complained that the rooms were dirty or that the food for the children contained too much sugar), that would not be a protected act because the less favourable treatment complained about was not because of a protected characteristic of her daughter.

What is a ‘detriment’?

9.12 ‘Detriment’ in the context of victimisation is not defined by the Act and could take many forms. Generally, a detriment is anything which the individual concerned might reasonably consider has changed their position for the worse or put them at a disadvantage compared to others.

9.13 For example, the denial of an opportunity can be a detriment. In the example above, the mother experiences the detriment of being denied the opportunity of a trip to the seaside with her daughter.

9.14 It does not matter that someone else might not consider the same treatment to be a detriment, provided that the individual concerned does and that at least some people might reasonably consider the treatment to be a detriment [footnote 66].

9.15 A detriment might also include a threat made to the individual which they take seriously, and which it is reasonable for them to take seriously. There is no need to demonstrate any physical or economic consequences. However, the treatment must be such that the individual concerned, and at least some other (although not all) reasonable individuals might consider it to be a detriment. An unjustified sense of grievance alone would not be enough to establish detriment [footnote 67].

Example

9.16 A woman claims sex discrimination when her political party refuses to nominate her as a councillor. She loses the case, as the court accepts the party’s explanation that under its rules, she was ineligible to stand because of her rent arrears.

At a party meeting after this ruling, she again asserts that she was not selected because she is a woman. She is upset when people point out that she lost her case, and the matter is over. Her grievance does not constitute a detriment.

‘Because of’ a protected act

9.17 Victimisation requires that any detrimental treatment must be ‘because of’ a protected act. This is the same causal test that applies in direct discrimination [footnote 68] (read paragraphs 4.19 to 4.32) except that a protected act rather than a protected characteristic must be the cause of the detriment.

9.18 Victimisation does not require a comparator. The individual need only show that the service provider, person exercising a public function or association subjected them to a detriment because they have done a protected act or because the service provider, person exercising a public function or association believes (rightly or wrongly) that they have done or intend to do a protected act.

9.19 A protected act needs to be a reason – conscious or unconscious – for the detrimental treatment but it does not need to be the only reason.

9.20 There is no time limit within which victimisation must occur after an individual has done a protected act. However, the individual must be able to show that the detriment was because of the protected act.

Example

9.21 Three years ago, a customer helped an employee of a bank in a sex discrimination claim against the local branch of that bank. Last week, that customer was refused an overdraft facility by the local bank manager who says that he will never forget that tribunal claim. The customer can claim victimisation even though the protected act (giving information which was used in a discrimination claim) took place three years ago.

Bad faith

9.22 An individual cannot claim victimisation where they have acted in bad faith, such as maliciously giving false evidence or information, or making a false allegation. Any such action would not be a protected act (s.27(3)).

Example

9.23 A customer assaulted the landlord of a pub in an unprovoked attack while drunk. In the magistrates' court, she falsely claimed that the landlord was trying to bar her for her behaviour and the landlord would not have done so if she had been a man. She is convicted and the magistrate found that she was an unreliable witness who had fabricated an allegation of sex discrimination to try to avoid conviction.

After the court case she visits the same pub, but the landlord tells her that she is banned for life. As her allegations were false and were made in bad faith, she cannot claim victimisation.  

9.24 However, if an individual gives evidence, provides information or makes an allegation in good faith, but it turns out that it was factually wrong or provided in relation to proceedings which are unsuccessful, they will still be protected from victimisation.

Example

9.25 A businesswoman with a hearing impairment who uses an induction loop complains that she has been denied access to conference rooms because the venue owners did not make a mobile induction loop immediately available on request. She brings a discrimination case for failure to make reasonable adjustments, which she loses. Her good faith in bringing the claim is accepted by everyone.

A few weeks later, the businesswoman visits the venue again and tries to book a room but is told that there are no rooms available. As she leaves, she notices another booking being made, so it is clear that conference rooms are available. She believes she is being victimised because of her complaint of disability discrimination. Although she lost her original discrimination claim, she would be able to make a claim of victimisation.

Instructing, causing or inducing discrimination

What the Act says

9.26 It is unlawful to instruct someone to discriminate against, harass or victimise another person, or to instruct a person to help another person to do an unlawful act (s.111(1)), provided that there is a relevant relationship between the person giving the instruction and the recipient of that instruction (s.111(7)). Read paragraph 9.35 for further details on what counts as a ‘relevant relationship’. Such an instruction would be unlawful even if it is not acted on.

Example

9.27 A butcher successfully brings a claim for race discrimination against a member of the local business association. In response, the association’s organising committee asks its members not to serve the butcher in their businesses. The people on the organising committee could be liable for unlawful instructions to victimise even if their members disregard their instruction.

9.28 The Act also makes it unlawful to cause (s.111(2)) or induce (s.111(3)), or to attempt to cause or induce (s.111(8)), someone to discriminate against, harass, or victimise a third person.

9.29 Inducement may involve the offer of some benefit or the threat of some detriment, but that is not necessarily required; the term should not be construed narrowly. If someone has sought to persuade another person to discriminate against, harass, or victimise a third person, that may amount to inducement [footnote 69]. Nor does the inducement have to be applied directly: it may be indirect (s.111(4)).

Example

9.30 The new manager of a sports club is buying equipment for the junior football team at a local shop. The shopkeeper offers the manager a discount if he keeps out of the team ‘those asylum seekers who have just moved into the area’. The manager is tempted by this and so makes it a condition of team membership that players must have lived in the area for at least four years. This disadvantages young people with non-British nationality whose parents may be asylum seekers, refugees or migrant workers.

Any young person who was refused membership could claim indirect discrimination related to nationality against the sports club manager, and for inducement against the shopkeeper.

9.31 In certain circumstances, it is also unlawful for a person to instruct, cause or induce another person to commit an act of discrimination or harassment in relation to a third person in the context of a relationship between the second and third person which has come to an end.

Example

9.32 A play group is insured through the local council and cannot find another insurer. The local council says that it will not insure the group for disabled children who wish to attend. The play group turns away several disabled children who previously attended as a result. The local authority has caused the playgroup to discriminate directly against these disabled children.

9.33 The Act also prohibits a person from causing (s.111(2)) or inducing (s.111(3)) someone to help another person to do an unlawful act (s.112(1)).

9.34 For the purposes of this section of the Act, it does not matter whether the person who is instructed, caused or induced to commit an unlawful act carries it out or not (s.111(6)). This is because instructing, causing or inducing an unlawful act is in itself unlawful.

When does the Act apply?

9.35 For the Act to apply, the relationship between the person giving the instruction or causing or inducing the unlawful act and the recipient of the instruction or inducement must be one in which discrimination, harassment or victimisation is prohibited (s.111(7)). This will include employment relationships, the provision of services or exercising of public functions, and other relationships governed by the Act.

Example

9.36 A local authority runs childcare services in its area. It instructs its social workers, who work as independent contractors, that they must not recommend to the fostering panel any fundamentalist Christian family as suitable to foster. The relationship between the local authority and the social workers is one in which discrimination is prohibited, under the provisions of Part 5 of the Act relating to contract workers. Therefore, the provisions in regard to instructing, causing or inducing discrimination will apply. Read paragraph 9.39 for more detail about who could bring a claim in this scenario.

Who is protected?

9.37 Whether or not the instruction is carried out, but provided that they experience a detriment as a result, the Act provides a remedy for:

  • the person who is the recipient of the instruction, causing or inducement
  • the intended subject of the discrimination, harassment or victimisation (s.111(5) and s.111(6))

9.38 In addition, the Equality and Human Rights Commission has the power to bring proceedings, regardless of whether anyone has actually experienced a detriment.

9.39 Therefore, in the example at paragraph 9.36, in which the social workers are instructed to discriminate by the local authority, both the social workers and the families affected may have a remedy against the local authority for giving the instruction. If the social workers experience a detriment as a result of this instruction (including a detriment for refusing to comply), they may bring a claim against the local authority. If the social workers comply with the local authority’s instruction, families who are denied fostering opportunities as a result may bring claims against the local authority as well as against the social workers.

Aiding contraventions

What the Act says

9.40 The Act makes it unlawful to knowingly help someone discriminate against, harass or victimise another person (s.112).

9.41 It is also unlawful to help a person to discriminate against or harass another person after a relationship covered by the Act has ended, where the discrimination or harassment arises from and is closely connected to the relationship.

9.42 The Act also makes it unlawful to help with an instruction to discriminate against, harass or victimise another person or with causing or inducing discrimination, harassment or victimisation.

Example

9.43 A GP surgery shares its premises with a dental practice which operates from the first floor. The dental practice is happy for the GP surgery to recommend the dentists to patients but asks the surgery’s practice manager not to refer any disabled patients because the dentists do not want the cost or effort of making any reasonable adjustments.

The GP practice manager complies with the request and when disabled patients make enquiries about the dentist, they are told that the practice is full, which is untrue. A disabled patient could claim for ‘instruction to discriminate’ against the dental practice and for ‘aiding an unlawful act’ against the GP surgery.

9.44 The prohibition of aiding discrimination, harassment or victimisation applies to all the areas covered by this Code.

What does it mean to help someone commit an unlawful act?

9.45 ‘Help’ should be given its ordinary meaning. It does not have the same meaning as to procure, induce or cause an unlawful act. The help given to someone to discriminate, harass or victimise a person will be unlawful even if it is not substantial or productive, so long as it is not negligible [footnote 70].

What does the helper need to know to be liable?

9.46 For the help to be unlawful, the person giving the help must know at the time they give the help that discrimination, harassment or victimisation is a probable outcome. But the helper does not have to intend that this should result from the help.

Reasonable reliance on another’s statement

9.47 If the helper is told that they are assisting with a lawful act, and it is reasonable for them to rely on this statement, then the help they give will not be unlawful (s.112(2)), even if it transpires that it assisted with a contravention of the Act. However, it is a criminal offence to knowingly or recklessly make a false or misleading statement as to the lawfulness of an act (s.112(3) and s.112(4)).

9.48 ‘Reasonable’ means having regard to all the circumstances including the nature of the act and how obviously discriminatory it is, the authority of the person making the statement, and the knowledge that the helper has, or ought to have.

Chapter 9 footnotes

  1. Warburton v Chief Constable of Northamptonshire Police [2022] ICR 925
  2. Warburton v Chief Constable of Northamptonshire Police [2022] ICR 925 and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337
  3. Page v Lord Chancellor [2021] EWCA Civ 254 per Underhill LJ, Reynolds v CLFIS(UK) Ltd [2015] ICR 1010
  4. Commission for Racial Equality v Imperial Society of Teachers of Dancing [1983] IRLR 473
  5. Anyanwu v South Bank Students’ Union [2001] IRLR 305

Page updates

Published:

2 October 2024

Last updated:

2 October 2024