In a complaint of victimisation under the Equality Act 2010 whether each case succeeds can generally be boiled down to three questions if there are no issues about jurisdiction (if employee, if claim in time, etc). If each answer to the three questions is yes then the claim will succeed and, if not, the claim will fail:
- Did the employee do a protected act?
- Did the claimant suffer a detriment?
- Was the reason for the detriment because of the protected act?
In a recent decision (Leighton v Renfrewshire Council) there has been some helpful consideration and explanation of the first and third of these questions.
The relevant factual background of the case is relatively simple. Mr Leighton was a council employee and part of an autism support service. In the midst of the Covid pandemic Mr Leighton offered to help a disabled tenant pack up and move house while renovations were underway. This was not part of his job but he obtained Council approval to do so.
The Claimant alleged victimisation because he had done a protected act (helping the tenant pack and move belongings) and was subject to a detriment because of that act in that he was moved to alternative duties. It was not disputed that the move to alternative duties was a detriment, and so the case turned on the question of whether the assistance packing belongings was a protected act and, secondly, whether the reason for the detriment was because of the protected act or some other reason. The ET found against Mr Leighton on both these questions these decisions were challenged in the appeal.
A Protected Act?
In practice, the concept of a protected act is often treated as being similar to a blowing of the whistle (qualified disclosure) – that there is some form of complaint. In the ET the tribunal asserted that helping a disabled person was not itself a protected act but was poorly reasoned. To be a protected act the act must be one of the four types of act provided by section 27(2) of the Equality Act 2010.
Last year, in a different decision the EAT found that for a protected act there was no absolute requirement for a claimant to mention or directly allege discrimination and whether an act is the protected act is based on a fuller consideration of the fact of a case (Kokomane v Boots Management Service Ltd [2025). Although not referenced in the Leighton case that is an important corrective to the view sometimes expressed that discrimination or the Equality Act needs to be mentioned for an act to be a protected act.
The EAT in Leighton had little difficulty in accepting that the claimant in asking his manager if he could assist the tenant especially in the context of the local authority’s own Equality Act obligations under the Public Sector Equality Duty (section 149 of the Equality Act).
One feature of the decision that is noteworthy is the nature of the protected act points to two often overlooked features of the victimisation:
- Firstly, it is very often the case that a complaint is advanced on the basis that an employer is penalising the claimant because they complained about discrimination they are experiencing. But this is in no way necessary. For example, a trade union representative who supports a member in a grievance about alleged discrimination will be very likely to have done a protected act and if they are themselves put to any detriment because of that support that can also be victimisation (the instinctive claim here would be detriment for trade union activities but a victimisation case may be better as the causation test is easier to meet (in victimisation the protected act must be a material cause for the treatment, but in a TU detriment case it must be the sole or main purpose of the treatment).
- Secondly, although most of the examples of a protected act include the provision of information (“bringing proceedings”, “giving evidence of information” or “making an allegation”) the scope also includes a much broader category of “doing any other thing for the purposes of or in connection with this Act” (section 27(2)(c) Equality Act) – which means the protection is much wider than just protection if you make a complaint or give evidence. Because the liability can attach to protected acts made outside of current employment (e.g former employers) it is not just limited to acts concerning the employer directly. There is I think scope – but there have been limited cases on this – where broader campaigning and protests activity (if lawful) would amount to a protected act so long as related to the Equality Act 2010.
But for?
In Leighton the claimant won on the argument that helping a disabled tenant was a protected act for which he could not lawfully be penalised for, but nevertheless the EAT still found his case was overall unsuccessful. Why?
The claimant made the argument that had he not asked to assist and assist the disabled tenant the negative treatment he complained about (the temporary job move) would never have happened. This is a ‘but for’ legal argument. The detriment was caused by the protected act because but for the fact of that complaint the issue would not have arisen.
This is a very common (and natural) argument for claimants but the decision of the EAT is robust in rejecting this. It is not enough to show that the treatment a claimant is complaining of would not have happened if the protected act had not taken place – it must be shown that the real reason for the treatment was the act itself and not some issue related to it. In this case, the EAT found that there was no error of law in the ET’s decision that the real reason for the treatment was not the act of helping the disabled tenant but the fact of a later complaint about the claimant’s conduct which was a different reason.
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