Victimisation: Miss E Carozzi v (1) University of Hertfordshire (2) Ms A Lucas [2024] EAT 169:

Section 27 Equality Act 2010 says it’s unlawful to victimise someone by subjecting them to a detriment because they have done (or may do) a protected act—for example, bringing or alleging an Equality Act claim. The Employment Appeal Tribunal’s decision in Carozzi clarifies how tribunals should apply that test in practice.

In the Carozzi case na employee asked for notes of a meeting with a manager. The manager (Ms Withers) refused, knowing the notes included complaints that might give the employee “ammunition” if she brought a claim. The employer argued it would have behaved the same way for any employee who was threatening legal action—even where the claim wasn’t under the Equality Act (e.g., constructive dismissal).

The Employment Appeal Tribunal said the Employment Tribunal used the wrong approach. Under s.27 of the Equality Act , the question is not “would you also have done this for people threatening other kinds of claims?”. The question is whether the Equality Act protected act (actual or anticipated) materially influenced the treatment.

The important points arising from this decision are that:

1) It’s not a comparator exercise under s.27 EqA. It doesn’t matter whether the employer would treat others in a similar situation in the same way; but whether the protected act materially influenced the detriment. 

2) The employer’s reason as found by the ET. The ET found that Ms Withers withheld the notes because she knew they might give the claimant “ammunition”, even though she knew they were disclosable in ET proceedings. That factual finding underpinned the victimisation complaint.

3) “Detriment” means what a reasonable worker might see as a disadvantage. The EAT reminded the ET that detriment includes treatment a reasonable employee might regard as disadvantageous—for example, being refused notes that could help resolve matters at a grievance stage and avoid litigation. The ET had not properly applied that test and so erred in law.

Why this matters for both employers and employees

• You can’t avoid victimisation liability by saying, “we’d do the same to anyone threatening legal action of any kind.” Under s.27 EqA, the focus is whether the Equality Act protected act (actual or likely) materially influenced what you did. 

• Refusing documents that a worker reasonably wants to progress or resolve concerns can be a detriment, even before any tribunal claim is issued. Tribunals must ask whether a reasonable worker might feel disadvantaged.

This summary is provided for information only and is not intended to be legal advice.