1. Introduction
Victimisation under Section 74 of the Employment Equality Acts 1998 to 2021 protects employees from adverse treatment in retaliation for engaging in protected acts — typically the making or supporting of an equality complaint. Victimisation is a standalone form of discrimination and can ground a complaint even where the underlying equality complaint did not succeed.
This article sets out the framework for victimisation claims, the categories of protected act, the typical fact patterns that arise, and the practical considerations for employers managing complaints in a manner that does not expose them to victimisation claims.
2. Legislation and Case Law
Section 6(1) of the Employment Equality Act 1998 (as amended) prohibits discrimination on any of the nine protected grounds: gender, civil status, family status, sexual orientation, religion, age, disability, race, and membership of the Traveller community. Section 6(2) of the Act sets out the protected grounds in full. Section 8 of the Act applies the prohibition to all aspects of the employment relationship including access to employment, conditions of employment, training, promotion and dismissal. Section 14A of the Act prohibits harassment and sexual harassment on any protected ground. Section 74 of the Act prohibits victimisation. Section 85A(1) provides that where, in any proceedings, facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination, it is for the respondent to prove the contrary. The leading authority on Section 85A is the Labour Court’s determination in Southern Health Board v Mitchell [2001] ELR 201, in which the Court held that the complainant must, in the first instance, establish a prima facie case of discrimination before the burden shifts to the respondent.
Section 74(2) of the 1998 Acts prohibits an employer from victimising an employee. Section 74(2) defines victimisation as dismissal or other adverse treatment of an employee that occurs as a reaction to specified protected acts.
The protected acts include: a complaint of discrimination made by the employee to the employer; any proceedings by a complainant; the employee having represented or otherwise supported a complainant; the work of an employee having been compared with that of another employee; an employee having been a witness in proceedings; the employee having opposed an act unlawful under the Acts; and the employee having given notice of an intention to take any of these actions.
The protection applies regardless of whether the underlying complaint or other protected act succeeded. The fact that a complaint was unsuccessful does not preclude a subsequent victimisation complaint.
Section 85A of the Acts applies to victimisation in the usual way: the complainant must establish a prima facie case, and the respondent must then prove that the adverse treatment was not by reference to the protected act.
3. Decision
Victimisation cases before the WRC engage two distinct issues: whether the complainant engaged in a protected act; and whether the adverse treatment was by reference to that protected act.
On the first issue, the protected acts are defined broadly and capture most forms of engagement with equality complaints. A formal WRC complaint, a complaint raised through the internal grievance procedure, a witness statement in support of another employee’s complaint, and even the giving of notice of an intention to make a complaint can all qualify.
On the second issue, the temporal connection between the protected act and the adverse treatment is often critical. Where the adverse treatment occurs shortly after the protected act, an inference of victimisation may be drawn under Section 85A. The respondent must then demonstrate that the treatment would have occurred regardless of the protected act.
Common adverse treatments in victimisation cases include: disciplinary action; performance management; exclusion from meetings, training, or career opportunities; alteration of duties; transfer to less favourable work; and dismissal. The treatment must be sufficiently serious to be characterised as adverse rather than merely inconvenient.
4. Takeaway
Victimisation under Section 74 is a standalone form of discrimination. Employers must take care to ensure that employees who engage in protected acts are not subjected to adverse treatment in consequence.
For employers, the practical advice is to ensure that the management of any equality complaint is separated from operational management of the complainant where possible, to document the basis of any subsequent decisions affecting the complainant, and to maintain particular vigilance during the period following an equality complaint.
Employers should be particularly alert to the dangers of subtle adverse treatment. Exclusion from informal meetings, marginalisation in team decisions, or downgrading of performance assessments may, individually or cumulatively, amount to victimisation.
For employees, the practical advice is to document any adverse treatment that follows an equality complaint, to raise it through the grievance procedure, and to obtain legal advice if the response is inadequate.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
Connect: @CrushellLaw or www.wordpress-576593-6594403.cloudwaysapps.com
