News & Insights

“May be” maybe not

We consider whether a grievance setting out that there ‘may be’ discrimination is enough to give employee protection from victimisation.

In a recent case heard by the Employment Appeal Tribunal it was considered whether a reference to actions which ‘may be discriminatory’ in a grievance sent by an employee over an email would be sufficient to amount to a protected act under the Equality Act.

Ms Chalmers worked as a business support manager and carried out some HR roles for her employer, Airpoint Limited. Ms Chalmers, together with the only other female employee at the company, had been excluded from work events and was not able to attend the Christmas party. She raised a grievance with her employer.

This was not upheld, and Ms Chalmers subsequently brought various claims including victimisation and unlawful discrimination on grounds of sex. She relied on an email she had earlier sent her line manager where she complained that she had been excluded from events. Her email stated that this exclusion was not acceptable to her and “may be discriminatory”. The Employment Tribunal (ET) stated the grievance contained no complaint or allegation that someone had breached the Equality Act in reference to a protected characteristic.

Following the ETs decision to dismiss the claims, Ms Chalmers appealed on the grounds that the ET interpreted her email and the law incorrectly with her reference to “discrimination” in the original grievance as a reference to discrimination in general and had ignored her “explicit statement” of sex discrimination.

The EAT dismissed the appeal. They noted that the word ‘may’ signifies doubt or uncertainty and may not amount to a protected act capable of founding a claim of victimisation because, depending upon the circumstances, it may not amount to an allegation that there has been a breach of the Equality Act. Meaning that although the EAT said the words could be taken as positive affirmation of discrimination, the tribunal was entitled to reach the conclusion it did. Further they stated that Ms Chalmers was experienced in HR and was articulate and well educated and the ET was entitled to take this into account.

This case highlights how an appeal at the EAT can have limitations. A decision can only be overturned if the law is wrong or a perverse decision was reached. Neither applied here. This case also highlights to employers that they can challenge claims on the basis of uncertainty. We would suggest you obtain legal advice if you receive a claim as that might be ambiguity in the presentation of it.