ET Failed to Consider Context in Victimisation Claim, EAT Rules

The Employment Appeal Tribunal (EAT) has upheld an appeal by a former employee against the Employment Tribunal’s (ET) dismissal of her victimisation claim, finding that the ET had misapplied the legal test for a protected act and failed to properly assess the wider context in which her complaint arose (Kokomane v Boots Management Services Ltd).

The claimant had been employed by a national pharmacy chain since 2001 and was transferred to a different store in 2018, where she was the only black employee. In 2019, she raised a grievance after being reprimanded by a pharmacist for “shouting” while requesting the key to the controlled drugs cabinet. She alleged she had been treated differently from colleagues and referenced racial stereotyping in her complaint.

Although she was later found to have been unfairly dismissed following redundancy during the COVID-19 pandemic, the ET dismissed her separate victimisation claim. It concluded that she had not made an allegation of race discrimination and therefore had not carried out a "protected act" within the meaning of section 27 of the Equality Act 2010.

On appeal, the EAT ruled that the ET had erred by adopting an overly narrow definition of a protected act. It reiterated that the law does not require a claimant to explicitly use the words “discrimination” or to legally characterise the act. Instead, it is sufficient if the facts asserted are capable of amounting to a discrimination allegation in law.

The EAT noted that the claimant had stated she had spoken in a manner consistent with her colleagues when calling for the key, yet was singled out. This should have raised the question of whether racial assumptions were influencing treatment. Importantly, the grievance notes indicated a concern about racial stereotyping, providing crucial context that the ET failed to properly examine.

The EAT concluded that the ET had found contextual facts but did not adequately assess how the employer might have reasonably understood the nature of the complaint. Given the claimant’s unique status as the only black employee, her reference to differential treatment, and the grievance material linking her concerns to racial assumptions, the ET was required to analyse whether those elements together amounted to a protected act.

The case has now been remitted to the same ET (if practicable) for reconsideration, applying the correct legal framework and taking proper account of the contextual background.