Employment Appeal Tribunal considers whether an employee stating that actions “may” amount to discrimination constituted a protected act under the Equality Act 2010.

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In Chalmers v Airpoint Ltd and others, the Employment Appeal Tribunal (EAT) considered whether an employee stating that actions “may” amount to discrimination could constitute a protected act under the Equality Act 2010.

Mrs Chalmers was employed by Airpoint Ltd as a business support manager. She carried out HR functions.

In 2016, Airpoint arranged a Christmas party that neither Mrs Chalmers nor the only other female employee in the office would be able to attend.

In the New Year, Mrs Chalmers raised a grievance explaining that “I have been excluded from both the Christmas night out and from the hardware refresh, neither of which is acceptable to me and both of which may be discriminatory”. Her grievance was not upheld.

Citing her grievance as the protected act, Mrs Chalmers went on to bring sex discrimination, harassment, and victimisation claims against her employer. A person suffers victimisation when they are subjected to a detriment because they have done a protected act, or because it is believed that they have done or may do a protected act. The statutory definition of a protected act includes alleging that the other party or another person has contravened the Equality Act. For example, an employee alleging that their employer has discriminated against them because of their sex. Such an assertion must be adequately clear, and capable of constituting a breach.

So, was Mrs Chalmers’ assertion in her grievance that her employer’s behaviour “may be discriminatory” a protected act?

The Employment Tribunal found that Mrs Chalmers had not made a protected act.

Arguing that the Employment Tribunal’s decision was perverse, Mrs Chalmers appealed to the Employment Appeal Tribunal. Lord Summers dismissed her appeal.

Lord Summers accepted “that some people do express themselves cautiously and that a tribunal might have inferred that the words were a disclosure of the Claimant’s belief that she had been discriminated against and that this was therefore a protected act”. Much would therefore depend on “the context and the Tribunal’s assessment of the evidence, including its assessment of whether the Claimant struck it as a person who was likely to have expressed herself cautiously”.

In this case, Mrs Chalmers’ background in HR could be considered, as well as the fact that she was articulate and well educated. Her grievance clearly complained about other matters, but had failed to state that she had suffered sex discrimination. Lord Summers also held that the factual context of Mrs Chalmers’ grievance should be considered, including that the Employment Tribunal found that Mrs Chalmers had not suffered discrimination in relation to the Christmas event, and that while Mrs Chalmers had complained to Airpoint’s managing director on the day of the Christmas event, she had not alleged sex discrimination.

This case highlights the importance of clarity when an employee alleges that the Equality Act has been breached.