No Victimisation Where Employee Required to Relocate After Grievance

An employee who was required to relocate after he raised a grievance about racist comments had not been victimised.

In Micheldever Tyre Service v Burrell, B was the only black employee at a particular branch. From the start of his employment there was banter of a racial nature which he initially took part in. He subsequently complained to his line manager about name-calling and abusive remarks. After a team meeting at which the employees were told to stop, the situation improved but only temporarily. B raised a grievance and then went off work sick.  The employer decided against disciplinary action and recommended that a further meeting should be held at which staff would be told that further name-calling or abuse would result in disciplinary action. 

B appealed unsuccessfully against the grievance decision.  He then returned to work unexpectedly and the employer suggested Acas workplace mediation in an attempt to resolve the situation. B initially agreed but changed his mind. The employer then suggested that he relocate to another site,but again B refused.  The employer then told B it had a contractual power to relocate him and that if he continued to refuse it would consider terminating his employment. It then changed his place of work and when he failed to report for work he was dismissed. 

B claimed victimisation. The EAT overturned the tribunal decision that the requirement that he relocate amounted to victimisation. The reason for B’s relocation was not the fact he had raised a grievance of race discrimination. The relocation proposal had only come about after B had withdrawn his consent to Acas mediation and was a reasonable one in the circumstances and arguably the best solution to the problem which had arisen. The alternatives of relocating all the staff involved in the racist behaviour or dismissing them was not reasonable. 

This decision demonstrates that in victimisation cases it is always necessary to consider the employer’s reason for or motive behind the action it took. The tribunal in this case appeared to apply a “but for” test - but for B raising the grievance, he would not have been required to relocate. In victimisation cases motive is key. Proposals made by an employer in a genuine attempt to resolve a situation, rather than as a ploy to force the employee out after a complaint has been made, will not amount to victimisation. There will often be a fine line in cases of this nature and if any doubt employers should always seek legal advice.