Allegation of discrimination does not need to be explicit to be protected act

A recent EAT ruling is a reminder that an employee can be protected against victimisation even if the allegation they make doesn’t expressly refer to a breach of the Equality Act, provided that the decision-maker would understand from the context that this is what is being alleged.

The Equality Act protects workers against being victimised (ie being subjected to a “detriment”) because they have done a “protected act”. The definition of protected act extends not only to taking part in proceedings brought under the Act, but also where the worker has made “an allegation (whether or not express) that…another person has contravened this Act”.

In this case the claimant (Ms Kokomane) was the only black full-time employee at a Boots pharmacy in Sheerness. She raised a grievance that her manager had publicly admonished her for shouting, but had treated other staff differently in similar circumstances. She did not make an express allegation of racial discrimination in the grievance, but at one of the meetings she referred to the fact that black women were considered to be “loud”. 

The claimant was subsequently made redundant, and she alleged that her selection for redundancy had been an act of victimisation, because she had submitted a grievance which alleged that her manager had discriminated against her because of her race. Although the tribunal upheld her claim for unfair dismissed on alternative grounds, it rejected her claim for victimisation. That was because in its view the raising of the grievance did not amount to a protected act.

The EAT has upheld Ms Kokomane’s appeal, pointing out that the employment tribunal’s decision appears not to have taken into account the context within which the grievance was raised. The employer would have been aware that the claimant was the only full-time staff member who was black, and in that context the mention of the racial trope that black women are “loud” at the grievance hearing was clearly significant.

The case will now return to the same tribunal for it to reconsider its decision on the victimisation claim. Whether the outcome, this decision is a reminder that an allegation of discrimination does not need to be explicit to amount to a protected act, if that is how it would have been understood by the employer.

The EAT  

(1)   A person (A) victimises another person (B) if A subject B to a detriment because—

a)      B does a protected act, or
b)      A believes that B has done, or may do, a protected act.

(2)   Each of the following is a protected act—

d)      making an allegation (whether or not express) that A or another person has contravened this Act.

Only black member of full time staff.  Good record. Complained about being told to stop “shouting” by manger, because she was being treated differently from other staff.  No express allegation of racial discrimination but reference in grievance meeting about racial trope of black women people being “know to be loud”. 

It appears to me the law could be summed up in this way: what is necessary is that the ET should take account of all of the factors that are provided in the information given by the employee to the employer. In addition the ET needs to consider that information on the basis of how it would be understood by the employer in context. It would be understood by the employer, in part, because of the general facts about the employee and the place of work, which the employer would know of in any event.  In terms, that the employee's complaint should be considered by the ET by examining the way that it would be understood by the employer. When the employee makes the complaint explicit that will be an easy task. When the complaint is oblique the context becomes important. [para 24]

Kokomane v Boots Management Services Ltd (RACE DISCRIMINATION) [2025] EAT 38 (11 March 2025)

Ms M Kokomane v Boots Management Services Ltd: 2303133/2021 - GOV.UK

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