CAPÍTULO III: FUNDAMENTO TEÓRICO
3.5 Tipos de movimiento de masa
The Act prohibits victimisation. It is victimisation for an education provider to subject a student to a detriment because the student has done a ‘protected act’ (see paragraphs 9.4 and 9.5) or because the education provider believes that the student has done or may do a protected act in the future.
9.3
An individual need not have a particular protected characteristic in order to be protected against victimisation under the Act; to be unlawful,
victimisation must be linked to a ‘protected act’ (see paragraphs 9.4 and 9.5). Making an allegation or doing something related to the Act does not have to involve an explicit reference to the legislation. Only individuals (not
organisations) are protected from victimisation.
Example: A mature student applies for a place on a sports science course at his community college, but is told that his age will make it difficult for him to reach the necessary fitness required. He makes a complaint to the college as he believes this is less favourable treatment because of age. A few weeks later he applies to attend a series of evening lectures at the college. He is told there are no spaces available. He finds out that a friend applied to attend the same lectures a few days after he did and got a place. This is likely to be unlawful victimisation if it was because of his previous age discrimination complaint.
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In the above example, if another applicant complains to the college regarding the unfair discrimination against the mature student and the college then refuses to admit the second applicant, this would also be victimisation and the age of that applicant would be irrelevant.What is a ‘protected act’? 9.4
A protected act is any of the following: • bringing proceedings under the Act
• giving evidence or information in connection with proceedings brought under the Act
• doing anything else which is related to the provisions of the Act, and • making an allegation (whether or not express) that another person has
done something in breach of the Act.
9.5
Protected acts can occur in any field covered by the Act and in relation to any part of the Act. An education provider must therefore not victimise a person who has done a protected act in the field of employment, for example. This includes protected acts relating to marriage and civil partnership, even though these are not protected characteristics for the purposes of education.
Example:The mother of a young person with learning disabilities made a complaint to a local further education college that her daughter was only being given access to a course in basic skills, when she was
interested in a course in catering and hospitality. Although she did not refer explicitly to the Act, she asserted that her daughter had been treated less favourably and referred to a protected characteristic
(disability). That is sufficient for her complaint to be a protected act, and for her to make a claim for victimisation when she subsequently suffers a detriment because of her complaint. On applying for a place on a course at the college herself she is rejected with no explanation despite meeting the entry requirements and there being places available on the course. She believes that she has been victimised because of her complaint on behalf of her daughter. Her daughter may have a separate claim of disability discrimination. s27(2)(a), (b), (c) and (d) s27(2)(c) and (d) Victimisation
Victimisation
What is a ‘detriment’? 9.6
‘Detriment’ in the context of victimisation is not defined by the Act and could take many forms. Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage.
9.7
In the context of further and higher education detriment might include: • being excluded
• being given lower marks • disciplinary action
• being denied opportunities, and
• failing to receive an appropriate response to a request for reasonable adjustments.
9.8
A detriment might also include a threat made to the student which they take seriously and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance alone would not be enough to establish detriment.
Example:In the above case, if the mother’s complaint had not referred to her daughter’s disability (for example, if she had complained that the facilities were poor or that the catering arrangements were not
adequate), that would not be a protected act, because the detriment complained of would not be because of a protected characteristic.
Example: A female engineering student is interviewed in relation to a complaint of racial harassment made by a fellow student against their tutor. She witnessed the incident and provides evidence to support the complaint. After providing the evidence, she finds out that her tutor has not put her forward for a prestigious design award, despite her project being recognised for excellence by the engineering faculty and having been told previously it would be submitted. If the reason for not being put forward was her involvement with the complaint, this would constitute victimisation.
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9.9Detrimental treatment amounts to victimisation if a ‘protected act’ is one of the reasons for the treatment but it need not be the only reason.
What other factors are involved in proving that victimisation has occurred? 9.10
Victimisation does not require a comparator. The individual need only show that they have been subjected to a detriment because they have done a protected act or because the education provider believes (rightly or wrongly) that they have done or intend to do a protected act.
9.11
There is no time limit within which victimisation must occur after a person has done a protected act. However, the student must be able to show a link between the detriment and the protected act.
9.12
An individual cannot claim victimisation where they have acted in bad faith such as maliciously giving false evidence or information or making a false allegation. Any such actions would not amount to a protected act.
Example: In his first year, a final year student with a hearing
impairment was not provided with routine access to a palantypist for lectures. He made several complaints to the university and was
eventually provided with palantypist support. The student applies for a postgraduate course at the university and at interview is questioned about the complaint and whether he expects he will need any other ‘special help’. The student is unsuccessful in gaining a place on the course. This may be victimisation if he was able to show a link between him not gaining a place on the course and the questions about his complaint asked during the interview.
s27(3)
Victimisation
9.13
However, if an individual gives evidence, provides information or makes an allegation in good faith but it turns out that it is factually wrong or provided in relation to proceedings which are unsuccessful, they will still be protected from victimisation.
Example: A black man applies for a place at a performing arts college to study dance. He attends an interview and audition as part of the
selection process. He is told he has been unsuccessful in gaining a place as he doesn’t have enough experience. The college suggest he might want to consider applying again next year. He writes a letter of complaint to the college principal stating he was discriminated against because of race. He makes allegations in the letter that staff interviewing him made racist comments toward him and he threatens to go public with his complaint. The complaint is investigated and the allegations are found to be completely false. He applies again the following year and is turned down as a result of the malicious and fabricated allegations he had made against college staff. This would not be unlawful victimisation.
Example:A man signs up for a drama workshop at his local further education college. He auditions for the part of leading man in a play but is told that he is too old, as it is written for a man in his twenties and he is middle-aged. He decides to pursue a legal action as he believes he has been the victim of age discrimination. He loses the case, as the college is able to justify the apparent age discrimination on the grounds that the part was designed for a younger man and choosing a younger actor to play it was a proportionate means of achieving a legitimate aim. He was not aware that direct age discrimination could be justified in this way, and accepts that he was wrong to bring the claim. A few months later, he is refused a place on another course at the college despite there being places available. He believes that he was victimised because of his
previous complaint of age discrimination. Although he lost his case in the county court, he would be able to bring a claim of victimisation because the complaint was made in good faith.