Supporting those who are victimised at work

What is the correct approach in establishing victimisation?

Zaffir Hakim, who is of Pakistani origin, was employed for over 11 years by the STUC, the representative organisation for Trade Unions in Scotland. When he didn’t get promoted in 2014, Mr Hakim raised a race discrimination claim against his employers. He withdrew the claim but when potential redundancies were announced in early 2015 the STUC then selected him for redundancy instead of other colleagues and he made a further race discrimination claim to the Tribunal. He also claimed unfair dismissal and victimisation.

Mr Hakim argued successfully that options for redeployment were not explored within the STUC as they should have been for any worker facing redundancy. The Tribunal rejected his claim of race discrimination but upheld his claim for unfair dismissal and found the STUC had victimised him because he had made the previous claim. The STUC appealed but only in respect of the victimisation decision.

Part of our role is to help make sure people in Britain have equal access to the labour market and are treated fairly at work. In our view, the appeal grounds in relation to the legal test for victimisation under the EA 2010 are wrong – we argued that the appeal wrongly suggested the law requires showing the worker has been treated worse than his colleagues, only that he had been selected for redundancy because he had previously made a race discrimination claim. We decided to support this case because if the appeal grounds are upheld, this would undermine the legal protection against victimisation in equality law.

We provided legal assistance at the Employment Appeal Tribunal under section 28 of the Equality Act 2006. 

At the Employment Appeal Tribunal hearing, the STUC accepted our argument that there was no need to show Mr Hakim had been treated less favourably than others, but said the Tribunal had been wrong in the way it dealt with shifting the burden of proof. Our arguments that the Tribunal had taken the right approach when deciding if there had been victimisation were upheld by the court.

In the EAT decision dismissing the appeal, Lady Wise said the Tribunal had applied the correct legal test to the facts of the case and had properly considered the relationship between Mr Hakim’s previous discrimination claim and his dismissal. Lady Wise said “nothing in the [tribunal’s] judgment suggests the tribunal derogated from its responsibility to find the real reason for the dismissal".

The case was then sent back to the Tribunal to consider the value of compensation due to him.

This case clarified the law relating to victimisation. In doing so, it ensures that legal protection against victimisation is not undermined. Had the appeal of the Scottish Trade Unions Congress been successful, this would have made it more difficult for workers to challenge victimisation by employers by requiring them to show they had been treated worse than another worker.