3 Ingredients to Prove Workplace Victimization

What is Victimization

There is a legal rule in place which provides protection for employees from treatment by an employer that is harmful to the employee.

The power in employer-employee relationships is with the employer.

S.74(4) of the Equality Act gives descriptions of when victimization occurs.

Victimisation takes place when there is a dismissal or other adverse treatment of an employee by his or her employer as a response to one of the following:

a) a complaint of discrimination made by the employee to the employer,

b) any proceedings by a complainant,

c) an employee having represented or otherwise supported a complainant,

d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

So, in simple terms an employee firstly has done something they are entitled to do, as listed above, and then an employer does not like this and reacts by punishing an employee, as they have the power to do so.

Evidently an employer reacting by dismissing an employee or treating an employee badly in reaction to one of the protected acts mentioned above, is unacceptable and should be challenged.

In case EDA 1017, the Labour Court held regarding victimization:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”.

Three Essential Ingredients

Three steps have to be taken and three things need to be assessed by examining the facts before taking a claim of this nature.

  1. Has the employee taken one of the actions referred to in S.74(2) of the Act listed above. So, an example is has the employee made a complaint of discrimination to the employer.
  2. Was the employee then subjected to either a dismissal or some adverse treatment by the employer as a consequence of their initial complaint to the employer ?.
  3. Was the employer’s reaction ie dismissal or adverse treatment a reaction to one of the protected acts taken by the employee listed in S.74(2).

The terminology of the legislation is clear and precise. The acts listed in S.74(2) above are considered ‘’protected acts’’. Therefore, employer’s expose themselves to claims and liability if the employer itself or a staff member of the employer punishes or treats an employee badly as a response to one of the above mentioned protected acts.

What if the Victimization Occurs Over a Period of Time ?

For example, if an employee suffers adverse treatment over time, then the question will need to be answered when did the victimization occur.

S.77(6A) of the Equality Act gives us guidance in this regard, as it states:

What can happen is a number of incidents build up until the person decides enough is enough and wishes to take a legal action. 

Legal Action Time Frame for Victimization Complaint

An employee must lodge a complaint within a period of 6 months from the date of occurrence of the victimization or discrimination. What the most recently occurred incident of victimization is, is a very important initial question to examine in cases of this nature.

There is provision to allow an applicant seek an extension of time regarding late lodgement of a complaint, but it is no easy task to traverse this obstacle successfully.

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