Victimisation protection does not require an explicit allegation

A recent Employment Appeal Tribunal (EAT) decision has highlighted that protection from victimisation is
not limited to situations where discrimination is explicitly alleged.

Facts

Ms Kokomane was a long-serving Customer Assistant for Boots. Other than herself, there was only one other
non-white employee working at the store, who was a relief Pharmacist.

Ms Kokomane raised a grievance complaining that the Pharmacist had treated her differently when handling
an allegation that Ms Kokomane had shouted at work. She subsequently raised a second grievance alleging
mishandling of her earlier grievance and also, bullying by the Pharmacist. Again, the outcome was not
favourable for Ms Kokomane.

When she was made redundant the year after her second grievance was heard, she brought a claim in the
Employment Tribunal including for victimisation. She claimed her grievances were ‘protected acts’.

The Law

A person is the subject of victimisation if they are treated detrimentally because they have done, are believed
to have done, or believed will do, a ‘protected act’. In this case, the ‘protected act’ was said to be the raising
of a grievance that related to alleged race discrimination.

Decision

At first instance the Employment Tribunal dismissed Ms Kokomane’s claim on the basis that she had not
explicitly alleged the differential treatment was related to her race.

She appealed and the EAT overturned the earlier decision finding that in determining if a protected act had
been done, employers and tribunals alike, should not focus so narrowly on the form of the grievance itself. To
amount to a protected act, a complaint does not need to explicitly say it relates to a form of discrimination,
simply that it must state facts from which it would be reasonable to interpret that a complaint of
discrimination was being made.

Here, it was the EAT’s view that given the surrounding circumstances, which included workplace diversity
and reference to stereotypes – Ms Kokomane was noted in her grievance hearing as referring to a trope of
black women and girls being shouty or too loud – the Employment Tribunal ought to have concluded her
grievances related to potential race discrimination even if Ms Kokomane had not communicated that
specifically.

Comment

Whilst this decision focuses on a tribunal’s assessment of a protected act, it nevertheless underlines that
protected acts under the Equality Act include sometimes subtle complaints. In much the same way that a
grievance does not need to be labelled as such, neither does an allegation of discrimination. As long as the
employer understands them as being connected to a form of discrimination in their context, they may amount
to a protected act and employers must be alert to such signals to appropriately deal with complaints, avoid
liability for victimisation and to promote a fair, inclusive workplace.

Case Reference: Kokomane v Boots Management Services Ltd [2025] EAT 38