In this case, the EAT held an employment tribunal had applied too narrow an approach by failing to consider the full context when determining whether an employee who had not expressly alleged race discrimination had done a protected act.
Facts
Ms Kokomane was the only full-time non-white member of staff employed at Boots' Sheerness store. She raised a grievance complaining that she had been treated differently from the other staff and bullied by her pharmacist colleague who had accused her of shouting. Ms Kokomane's grievance letter did not state that she was being discriminated against because of her race, nor did she attribute the pharmacist's treatment of her to her race. However, the notes of the grievance hearing recorded that Ms Kokomane had stated during the hearing that black women and girls are known to be loud. Again, while not expressed in terms, the allegation was one of stereotyping, a point which Ms Kokomane reinforced during her internal grievance appeal.
Boots' business was negatively affected by the Covid-19 pandemic, and in January 2021 it undertook a redundancy exercise at its Sheerness store. There was some delay to the redundancy consultation process while Boots dealt with Ms Kokomane's grievance, but she was ultimately dismissed for redundancy in May 2021. She brought employment tribunal claims alleging, among other things, that her redundancy selection and dismissal amounted to victimisation because – by bringing her grievance – she had done a protected act.
An employment tribunal dismissed Ms Kokomane's victimisation claim, holding that she had not done a protected act because she had not mentioned race or discrimination at the grievance hearing or appeal.
Ms Kokomane appealed to the EAT, which allowed her appeal. The EAT observed that while a tribunal is not required to assume that any allegations of difference in treatment are about race solely because a claimant is the only black employee, where a complaint is oblique, the context becomes important and needs to be carefully analysed. Here, Ms Kokomane was the only black employee, she had complained about being treated differently, she was accused of shouting and the grievance meeting notes raised as an issue that shouting may be connected to black women in a negative way, and this issue was reinforced during the internal appeal. The employment tribunal did not appear to have considered this context in sufficient detail in concluding that Ms Kokomane had not done a protected act, and the EAT remitted to case to the employment tribunal to consider.
What does this mean for employers?
Where an employee is explicit that they are making a discrimination complaint, and about the protected characteristic at play, they will have done a protected act for victimisation purposes. However, this case shows that employers cannot assume that an employee who makes a more oblique complaint will not be protected from victimisation. Tribunals need to look carefully at all the circumstances to give context to what the employee said and whether, at the time the employee raised the issue, the employer would have understood the complaint to be one of discrimination.
Where an employer is not sure if an employee is alleging discrimination, but context suggests this may be the case, one option is for the employer to ask the employee directly. Flushing this out during an internal process, rather than incurring the time and cost of a tribunal hearing to determine whether the individual has done a protected act, may be a more pragmatic approach in the long term.
