UK: EAT ruling that tentative discrimination allegation was not a protected act, given claimant's personality and background

It is unlawful victimisation to subject an employee to detriment because they have done a '"protected act" such as alleging unlawful discrimination.  The ruling in Chalmers v Airpoint Limited highlights that whether an allegation has been made sufficiently clearly will depend on the context, including the employee's personality and background.

The claimant in this case lodged a grievance that her employer's actions in arranging a social event on a date she could not attend "may amount to discrimination";  the tribunal concluded that this was not clear enough to amount to an allegation of sex discrimination. The EAT held that the tribunal was entitled to reach this conclusion by taking into account the factual context surrounding the allegation and in particular the fact that the claimant worked in HR, was articulate and well-educated and had felt able to complain clearly about other matters in the past. While a tribunal was not required to interpret the words used by an employee literally and there would be circumstances in which the use of equivocal language would amount to a protected act, this would depend on the context and the tribunal's assessment of the evidence, including whether the employee was the type of person likely to express themselves cautiously. On the facts here, the tribunal was entitled to conclude that an allegation of sex discrimination had not been made, the word "may" usually signifying doubt or uncertainty, and that, given the claimant's background and experience, her failure to refer to sex discrimination was intentional.

Employers should bear in mind that the use of non-explicit language may not necessarily prove fatal to victimisation claims from employees who are less confident and less familiar with employment law than the claimant here.