Was the treatment because the claimant did a protected act?
There is no requirement that the respondent be consciously motivated to treat the claimant less favourably. But the respondent does require to have knowledge of the protected act in order to have treated the claimant less favourably because of it.
In Chief Constable of the Greater Manchester Police v Bailey [2017] EWCA Civ 425, the Court of Appeal held that a “but for” test is incorrect. The tribunal should ask whether the treatment was because of the protected acts. That requires a consideration of the employer’s conscious or unconscious motivation. The tribunal should not jump to any conclusions on the basis of the absence of conscious motivation:
- … The vitiating motivation may well have been entirely subconscious…so that her evidence denying it may have been honest but wrong. It [the Tribunal] was entitled to rely on the unreasonableness of her conscious motivation as an indication that she was in fact motivated by the other considerations which it identified.
Victimisation can involve discrimination by association (Thompson v London Central Bus UKEAT/0108/15). There is no minimal degree of association between the victim and the third party with the protected characteristic. This may potentially afford protection to employers and workers who have not done a protected act.
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 is well known as the House of Lords case setting out the test: is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?
Or because of the way the protected act was made?
A contentious point in certain cases is that it might be possible to distinguish between a protected act, and the manner in which it was made, as the reason for dismissal. (Martin v Devonshires Solicitors UKEAT 0086/10)
Bad faith?
Section 27(3) bad faith was considered in the more recent EAT case of Kalu v University Hospitals Sussex NHS Foundation Trust [2022] EAT 168:
“The bad faith point goes to the first question [whether the claimant did a protected act], as an allegation which would otherwise amount to a protected act will not do so if it is false and made in bad faith. The bad faith question concerns the state of mind of the claimant, and in particular whether they were dishonest in the sense that they did not believe in the truth of the allegation they were making.”
