Allegations of discrimination must be clear and concise

When making an allegation of discrimination, wording must be clear and unambiguous in order to amount to a protected act under Section 27 of the Equality Act 2010.

The Issue

The recent case of Chalmers v Airpoint Ltd & Others (UKEATS/0031/19/SS) considered whether an employee’s accusation that ‘may’ be considered to constitute discrimination was sufficient to amount to a protected act under Section 27 Equality Act 2010 (EqA 2010),

Section 27 of the EqA 2010 states that in order to establish victimisation an employee must show that they have been subjected to a detriment because they have done a protected act or their employer believes they have done or will do a protected act.

A protected act includes bringing proceedings under the EqA, giving evidence or information in connection with proceedings under the EqA or making an allegation that someone has contravened the EqA. This case mainly considers a protected act under Section 27(2)(a), bringing proceedings under the EqA and Section 27(2)(d), making an allegation that there has been a breach of the EqA 2010.

The Facts

The Claimant Mrs Chalmers was employed by the Respondent as a Business Support Manager which also involved some HR responsibility. During her employment she raised a grievance by email making a complaint regarding her manager’s behaviour and that she had been excluded from a Christmas Party, which she alleged ‘may’ be discriminatory. Her grievance was not upheld and she bought proceedings in the Employment Tribunal for sex discrimination, harassment and victimisation.

In her allegations of victimisation she relied on the emailed grievance as the protected act. The tribunal concluded that the Claimants use of the word ‘may’ and failure to clearly assert that she had been discriminated against on the grounds of sex, did not amount to a protected act. The Claimant appealed to the EAT arguing that the tribunal had ignored her explicit statement of sex discrimination, contained within her email.

The EAT considered the email as a source of evidence, agreeing with the tribunal that the wording chosen by the Claimant revealed doubt and uncertainty and that the absence of a clear assertion of sex discrimination undermined her allegation that this was an explicit statement of sex discrimination.

In addition to those points and considering the Claimants education, background and her HR experience, the EAT concluded that the email contained no complaint or allegation of a contravention of the EqA 2010. The EAT therefore confirmed that there was no protected act for the purposes of Section 27 and the tribunals decision was not perverse.

Points to take away from the case

The case highlights the importance of using clear and unambiguous wording when relying on a particular statement as protected act.  The case also demonstrates the emphasis the employment tribunal places on context and the circumstances as each case will be fact specific.