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Victimisation – claims against previous employers

BY Gerry O'Hare
Employment Law & HR
BG Purple

An employee is victimised when he or she is subjected to a detriment due to them having previously done a protected act e.g. raising previous HR actions, giving evidence on behalf of someone else or otherwise making an allegation that there has been an act of HR.

The protected act does not need to have been done in relation to the employer responsible for the detrimental treatment. 

A good example of an employer who found themselves in such a difficulty in relation to protected acts when with a previous employer, is provided by the recent tribunal case of Bouabdillah v Commerzbank AG.  In this case, B submitted claims for sex HR and equal pay against her former employer.  Shortly after submitting her claims, she was interviewed for and accepted a new role with Commerzbank.  B did not disclose the claim that she had raised against her former employer at interview.  While she was not particularly forthcoming in the answers she provided to her new employer; crucially she was not dishonest in any answer or explanation that she gave. 

The claim against the first employer was duly reported in the press; the article making mention that B as now employed by the Bank.  The Bank took the view that by linking its name to a HR complaint, albeit one that it was not a party to, B has caused damage to its reputation and promptly dismissed her. 

B claimed that the reasons given by the bank for her dismissal were false and the real reason she was dismissed was that she was seen a trouble maker for having raised HR complaints with a previous employer.  The tribunal agreed unanimously that B was correct in her assertion and her claim for victimisation succeeded.  

Employers need to take care when they receive information that an employee has raised HR complaints with a previous employer, or where a reference alludes to this, to ensure that any decision not to recruit cannot be linked to this fact.

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