Risk of not handling discrimination complaints properly. Victimisation claim even where the discrimination case is dismissed.

The English Employment Appeal Tribunal (“EAT”) judgment in Miss E Carozzi v University of Hertfordshire and Ms A Lucas [2024] EAT 169 (“Carozzi”) is a recent example demonstrating that victimisation claim can arise even where the underlying discrimination claim may not be meritorious and in turn the importance of properly handling and dealing with discrimination complaints.

Background

The Appellant, a Brazilian national with a Jewish ethnic background, was employed by the University with a 6-month probationary period which was twice extended. Before the completion of the extended probationary period, she resigned from her position.

Subsequently, the Appellant made multiple allegations against the University including 36 separate complaints of discriminatory treatment. These were all dismissed by the Employment Tribunal (“ET”).

When the Appellant sought to appeal against the dismissals, EAT held most of the complaints to be unarguable. However, among the limited number of claims the Appellant was allowed to pursue, was one in which it was alleged that:-

“she was victimised under section 27 of the Equality Act 2010 when the Respondents refused to provide the notes of the meeting between the Appellant and another employee of the Respondent because she showed the Respondents an intention to bring discrimination proceedings.”

Section 27 of the Equality Act 2010 provides that:-

“(1) A person (A) victimises another person (B) if A subjects 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 –

(a) bringing proceedings under this Act;

(b) giving evidence or information in connection with proceedings under this Act;

(c) doing any other thing for the purposes of or in connection with this Act;

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

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.”

Ultimately, the EAT reinstated her claim of the victimisation as it considered that ET applied the wrong test when determining whether the University victimised the Appellant by refusing to provide the relevant meeting notes.

Hong Kong’s Position

Similar to the legislation in the UK case above, there are provisions in the four anti-discrimination Ordinances in Hong Kong which regulate victimisation in the prescribed areas. They are not dissimilar to their UK counterparts.

By way of example, section 6 of the Race Discrimination Ordinance (Cap. 602) provides that:-

(1) A person (the discriminator) discriminates against another person (the person victimized) in any circumstances relevant for the purposes of any provision of this Ordinance if the discriminator treats the person victimized less favourably than in those circumstances the discriminator treats or would treat other persons, and does so-

(a) by reason that the person victimized or any other person (the third person) has-

(i) brought proceedings against the discriminator or any other person under this Ordinance;

(ii) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Ordinance;

(iii) otherwise done anything under or by reference to this Ordinance in relation to the discriminator or any other person; or

(iv) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Ordinance; or

(b) by reason that the discriminator-

(i) knows the person victimized or the third person, as the case may be, intends to do any of those things; or

(ii) suspects the person victimized or the third person, as the case may be, has done, or intends to do, any of them.

(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by that person if the allegation was false and not made in good faith.

Section 9 of the Sex Discrimination Ordinance, section 7 of the Disability Discrimination Ordinance and section 6 of the Family Status Discrimination Ordinance provide for victimisation in their respective prescribed areas in largely identical terms.

As can be seen above, the legislative provisions relating to victimisation are not only linked or related to the merits of any underlying discrimination claim (if the person alleging discrimination in the first place is also the same person alleging victimisation later on).

• Accordingly, and as shown in the case of Carozzi (above), a victimisation claim can be established if the defendant’s conduct falls within the scope of the provisions (i.e. discriminated/ caused detriment because of the complainant’s protected acts).

• The only exception where the defendant may escape liability is where the complainant carries out the protected act based on untrue allegations and knowing that it was untrue (i.e. bad faith). The Court is likely to require such evidence to be adduced (which may be difficult to come by) (see Lam Wing Lai v Y T Cheng (Ching Tai) Ltd (DCEO6/2004, Decision dated 29 March 2006)).  

Key Takeaways

An employer or manager may be inclined to take disciplinary, or retaliatory action when faced with a discrimination complainant whom they suspect had made the complaint without any reasonable basis. Any such actions will need to be carefully considered as they may give rise to victimisation under the anti-discrimination Ordinances.

Alternatively, with the best of intentions, an employer may wish to protect an employee complaining of discrimination or harassment by taking unilateral action in by changing the job duties or location, so that he/ she will not be interacting with the person complained about. This may similarly give rise to victimisation under the relevant legislations as it may amount to less favourable treatment due to the complaint.

It may help in minimising the above risks by clearly setting out in the anti-discrimination policy an assurance that any employee who makes discrimination complaint in good faith will not be subject to any act of victimisation but including a message that any untruthful complaint may lead to disciplinary actions. 

All employers must take into account the above and act with care in dealing with any complaint of a harassment or discrimination, even if they think it is baseless and/or lacks any proper merit.

Please see our previous article on victimisation for further detailed discussion.

For a comprehensive overview of the anti-discrimination laws in Hong Kong, please see our previous article here.

Russell Bennett and Mark Chiu

For more information on employment matters, please contact:

Russell Bennett

Partner | Email

Mark Chiu

Consultant | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. This article was last updated on 18 December 2024.