A v West Midlands Police (Harassment)

Under section 27 of the Equality Act 2010, victimisation requires a detriment caused by the protected act. An omission may amount to a detriment, but the provision does not itself impose a duty to investigate a complaint in a particular way or create an entitlement to a particular outcome or speed of resolution. Where the protected act is the complaint itself, a complaint that it was inadequately investigated requires a careful evidential basis for causation.

An Employment Tribunal must explain its findings on central issues. It need not make a separate finding on every factual allegation where its reasons, read holistically, sufficiently explain the overall assessment and the omitted finding could not sensibly affect the result.

A serving police officer alleged that her superior officer had sexually harassed her over approximately 18 months. The Employment Tribunal held that their relationship had been consensual until 23 and 24 October 2011, when his persistent unwanted contact amounted to harassment related to sex contrary to section 26 of the Equality Act 2010. It dismissed her remaining harassment complaints and her claim of victimisation arising from the Force's handling of her complaint.

She appealed on the grounds that the Force had improperly narrowed its investigation by not treating the matter as sexual harassment, and that the Tribunal had failed to make findings on two alleged incidents in which the officer had grabbed her. The central issues were causation under section 27 and whether the Tribunal's reasons adequately dealt with material factual issues.

1. Appeal dismissed. The Tribunal was entitled to reject the victimisation claim. Section 27 of the Equality Act 2010 requires identification of a detriment to which the claimant was subjected because she did a protected act. Unlike the predecessor legislation, it does not require less favourable treatment or classify victimisation as discrimination.

2. An omission can in principle amount to victimisation. However, the provision is protective and does not give a complainant a right to a particular grievance outcome, investigation, or timescale. Where the protected act is making a complaint, an allegation that the complaint was inadequately handled because it was made will usually require especially careful evidence of causation. A failure to deal with a sexual-harassment complaint could exceptionally be victimisation if its sexual nature prompted adverse inaction which caused detriment, but that was not established here.

3. The Tribunal's findings that the Force had responded seriously and supportively, moved the alleged harasser, and managed a difficult situation with empathy were inconsistent with any real detriment or causal link to the protected act. There was no sufficient evidence that the failure to pursue a sexual-harassment disciplinary allegation was caused by the claimant's complaint.

4. A Tribunal must give reasons sufficient to show why a party has lost and must determine central factual issues. Yet reasons are read as a whole. Applying a holistic assessment of the relationship and credibility, the Tribunal had sufficiently addressed the significance of the barbecue incident, although a discrete finding would have been preferable. The September allegation was more troubling, but it had been advanced principally as a credibility point. In the overall context, the omission of a specific finding could not sensibly have affected the conclusion that there was no earlier sexually motivated harassment.

• Employment Appeal Tribunal: Appeal dismissed: [2015] UKEAT 0313_14_2104.
• Employment Tribunal, Birmingham: Reasons sent on 11 June 2014. The Tribunal upheld harassment limited to 23 and 24 October 2011 and dismissed the remaining harassment and victimisation complaints.