Woodhouse v West North West Homes Leeds Ltd

Under section 27 of the Equality Act 2010, victimisation turns on whether the claimant suffered a detriment because of a protected act. It does not require less favourable treatment or a comparative exercise. A comparison with an employee who made different, non-discriminatory complaints is in any event unhelpful.

False or ill-founded allegations remain protected unless made in bad faith. The exceptional reasoning in Martin does not provide a template for treating repeated grievances, or an employee's strongly held belief in discrimination, as separable from protected acts. A dismissal to prevent further protected complaints is victimisation unless a genuinely separable cause is established.

The claimant had brought numerous grievances and Employment Tribunal claims concerning alleged racial discrimination. The Employment Tribunal dismissed his claims of victimisation against the respondent arising from his suspension and dismissal. It found that the respondent dismissed him because he had lost trust and confidence in the organisation, rather than because he had made race-discrimination complaints.

The Employment Tribunal also found the dismissal unfair. It reduced compensation by 90 per cent on a Polkey basis, concluding that a warning would have given the claimant only a small prospect of continued employment.

The claimant appealed against the rejection of victimisation and the compensatory deduction. The central issue was whether the findings showed that dismissal was because of past or anticipated protected acts within section 27 of the Equality Act 2010.

1. Appeal allowed. The Employment Tribunal erred by deciding victimisation through a comparative exercise. Section 27(1) of the Equality Act 2010 asks whether the claimant was subjected to a detriment because of a protected act. Since 1 October 2010, less favourable treatment is not an element of victimisation. Comparison with an employee who made equally groundless complaints of a different kind could not illuminate that causative question.

2. The claimant's allegations of discrimination were protected acts. Their being ill-founded, objectively incorrect or unsupported by evidence did not remove their protection. Section 27(3) excludes a false allegation only where it was made in bad faith. The Employment Tribunal had accepted that the claimant acted sincerely and bad faith was not advanced.

3. Martin v Devonshire Solicitors identified an exceptional situation in which a reason for detrimental treatment may be genuinely separable from the making of a complaint. It was not a factual template. Repeated grievances, perceived irrationality and the likelihood of further complaints will not ordinarily establish such a separable feature. The present case lacked the illness-linked features in Martin, and the Employment Tribunal did not identify any genuinely separable cause.

4. On the Employment Tribunal's own findings, the respondent dismissed the claimant because of his previous protected grievances and the anticipated repetition of them. The finding that he had been victimised by suspension and dismissal was therefore substituted.

5. The appeal against the 90 per cent Polkey deduction also succeeded. Once victimisation was established, the deduction was unsustainable and was quashed. Alternatively, the Employment Tribunal had erred by deciding that issue without giving the parties an opportunity to make submissions. Had remittal been necessary, the issue would have been remitted to the same Employment Tribunal with permission for either party to call relevant evidence.

• Employment Appeal Tribunal: Allowed the claimant's appeal, substituted a finding of victimisation, and quashed the Polkey deduction: [2013] UKEAT 0007_12_0506.
• Employment Tribunal: Dismissed the victimisation claim arising from suspension and dismissal, found the dismissal unfair, and reduced compensation by 90 per cent.