Kokomane v Boots Management Services Ltd: Actions an Employee Can Take Without Fear of Retaliation or Victimisation
In Kokomane v Boots Management Services Ltd, the Employment Appeal Tribunal (EAT) has emphasised the need for a contextual approach when assessing whether an employee has executed a “protected act” for the purposes of a victimisation claim under the Equality Act 2010. We examine victimisation and “protected acts”, and how to avoid accusations of discrimination when dealing with grievances.
The case
Ms Kokomane raised an initial grievance after being accused of shouting in the workplace, alleging she was being treated differently to colleagues. She later raised a second grievance, complaining that her first grievance had not been acted on and alleging she had been bullied. Neither grievance explicitly alleged race discrimination. However, during the grievance process, the Claimant mentioned that negative stereotypes about black women and shouting may have influenced how she was treated. Ms Kokomane brought a claim of victimisation against Boots Management Services, alleging her grievances were “protected acts” under the Equality Act 2010.
The Employment Tribunal initially rejected the claim, concluding that her grievances did not amount to “protected acts” because they lacked a direct reference to race discrimination.
On appeal, the EAT disagreed and ruled that:
- A complaint need not explicitly reference discrimination to qualify as a “protected act”.
- Tribunals must consider the full context – including what the employer knew at the time.
- The test is: what would the employer reasonably have understood the complaint to mean, in light of the circumstances?
In this particular case, Boots Management Services knew Ms Kokomane was the only black employee and had raised concerns about racialised perceptions during the grievance process.
Practical tips for employers
This decision is a reminder to employers of the importance of recognising and responding appropriately to potential discrimination complaints – even if they are not framed in legal language.
Here’s how employers can reduce the risk of victimisation claims:
- Train managers and HR to spot potential “protected acts” : a grievance or complaint doesn’t need to use the word “discrimination” to trigger legal protection. Staff should be alert to concerns that could relate to protected characteristics.
- Take all grievances seriously and act promptly: failing to act on a grievance – even if it seems vague – can form the basis of a victimisation claim. Ensure there is a consistent, documented process for handling all complaints.
- Avoid treating complainants unfavourably: decisions taken shortly after a grievance – such as disciplinary action or exclusion from opportunities – will be closely scrutinised.
- Keep context in mind: consider what a complaint might reasonably mean, not just what is written. This includes understanding the workplace dynamics and employee relationships.
- Review grievance outcomes and communications carefully: language matters. Be sensitive in how findings are communicated and avoid dismissive or minimising language that might deter future disclosures.
Final thoughts
The Kokomane v Boots Management Services underlines that the threshold for what qualifies as a “protected act” is not as high as some employers might assume. A failure to recognise this can expose businesses to costly and reputationally damaging claims.
If you are unsure whether a complaint might engage legal obligations under the Equality Act 2010, contact our Employment team.
