More to victimisation than meets the eye

Marie Allen, an employment solicitor at Gotelee & Goldsmith explains the legal definition of victimisation

Marie Allen, an employment solicitor at Gotelee & Goldsmith explains the legal definition of victimisation

IT is not uncommon for employees to complain about being “victimised” if they feel that they are being treated unfavourably by a colleague or manager.

The legal definition of victimisation is, however, much narrower and more restrictive than many employees would believe.

Victimisation is a type of discrimination that involves a person being treated less favourably because they have complained (or intend to complain) about discrimination or harassment (due to sex, race, disability, religion, sexual orientation or age), or because they have given evidence in relation to another person's complaint of discrimination. Unlike some other types of discrimination, victimisation can never be justified.

Claims for victimisation commonly arise in the context of an employer's failure (or refusal) to provide a reference to an employee, or because they have provided an unreasonably negative reference.

It is not limited to references, though. In a recent case, the Court of Appeal decided in Rank Nemo Ltd v Coutinho that an employer's failure to pay a compensation award could amount to victimisation. Mr Coutinho had made claims of unfair dismissal and race discrimination against his employer. He succeeded with his claims and the Employment Tribunal ordered Rank Nemo Ltd to pay compensation of �72,000. The compensation was not paid to him. Mr Coutinho alleged that other creditors of the company had been paid. He had made a complaint of discrimination and had not been paid sums owing to him. His argument was that this difference in treatment amounted to victimisation.

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An Employment Tribunal will now have to consider Mr Coutinho's claim to see if it agrees with him that the non-payment amounts to an act of victimisation. If it does, the company is likely to have to pay even more compensation.

Practical Tip: Under no circumstances should an employer ignore an award of compensation; this may compound the problem and lead to further claims being made, which will only serve to increase the financial burden on the employer. Take specialist advice, to see whether you can appeal against the decision.

For further employment advice contact Marie Allen at Gotelee & Goldsmith on 01473 298133 or email