Victimisation and ‘Protected Acts: Why context matters in discrimination claims

What counts as a ‘protected act’ in discrimination law? The Kokomane v Boots Management Services case highlights that tribunals must look at the full context in discrimination claims.

Victimisation is a form of discrimination under the Equality Act 2010. It happens when someone is treated badly because they’ve done—or are believed to have done—a ‘protected act’. But what exactly counts as a ‘protected act’?

A recent case shows how important it is for employers and tribunals to look beyond just the wording of complaints—and consider the wider context.

What is a Protected Act?

A protected act includes:

• Making a complaint about discrimination or harassment.
• Supporting someone else’s discrimination claim.
• Gathering evidence that could be used in a discrimination complaint.
• Acting as a witness.
• Saying something relevant about a complaint, even if it doesn’t support the original claim.

Kokomane v Boots Management Services

In the case, Kokomane v Boots Management Services, a black employee raised two grievances:

• She said she was treated differently after being accused of shouting.
• She complained of bullying and the employer’s failure to properly deal with her first grievance.

Importantly, the employee didn’t explicitly say this was due to her race. So, the original employment tribunal dismissed her victimisation claim.

But the Employment Appeal Tribunal (EAT) disagreed and said the Tribunal should have considered the case more carefully.

Why context matters

The EAT said the tribunal made a mistake by not considering the full picture.

Here’s what they highlighted:

• The employer knew she was the only black employee in the team.
• Her grievance letter was on record.
• Concerns about racial stereotyping had previously been raised in the workplace.

Even though the claimant didn’t use words like “race discrimination,” her complaints were about differential treatment, and the facts suggested a protected act and therefore a potential case of discrimination.

Important reminder for HR and employers

1. Employees don’t need to use legal terms
   A complaint can qualify as a protected act even if it doesn’t use the word “discrimination” or name a protected characteristic.
2. Context is critical
   Consider the background circumstances, the workplace environment, and what management knew at the time.
3. Employers should always record, and review, complaints carefully
    Keep detailed records of all grievances. If discrimination is even hinted at, treat it seriously—even if it’s not clearly stated.
4. Avoid narrow interpretations
   Failing to recognise a protected act where negative treatment followed could lead to a successful victimisation claim.

This case is a reminder that employment tribunals—and employers—must look at the bigger picture when handling discrimination complaints. Context, timing, and workplace dynamics matter just as much as what is written down.

By taking a broader view, you reduce legal risk and create a fairer, more inclusive workplace.

Further reading

• Discrimination: your rights: Types of discrimination (‘protected characteristics’) – GOV.UK
• BBC settles discrimination claims ‘on the steps’ – Hunter Law
• HMRC accused of harassment (for birthday wishes!) – Hunter Law

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