Kokomane v Boots Management Services [2025] EAT 38
In this case, the employment appeals tribunal held that the original tribunal had applied too narrow an approach to what a “protected act” was under discrimination law, leading to the outcome that the bar is lower than employers may have envisaged and that context is important. A protected act is any action taken to challenge or address discrimination.
Ms Kokomane was the only non-white employee of the Boots Sheerness store. She raised several grievances in relation to being treated differently by her colleagues because they claimed she had shouted. She also claimed that she was bullied by them. She did not argue that this differential treatment was due to her race; however in the grievance hearing it was discussed that culturally, black women and girls are stereotyped as loud. Boots then went on to make a number of redundancies including in 2021, dismissing Ms Kokomane. Her grievance had not been upheld (even after an internal appeal by her) prior to this but she still brought a claim of victimisation – that her grievance was a protected act and she had been selected for redundancy because of this.
The employment tribunal dismissed her claim concluding that she had not been discriminated against (through victimisation) because she had not mentioned race or discrimination expressly in either her grievance or appeal. The appeals tribunal noted that while an employment tribunal does not have to conclude that any differences of treatment are due to a protected characteristic be that race, sex or religious belief, where a complaint raises the possibility that this is the case due to context – that is, Ms Kokomane was the only black employee, she had complained about being treated differently, she was accused of shouting and the grievance meeting notes raised as an issue that shouting may be connected to black women in a negative way, and this issue was reinforced during the internal appeal - then this information becomes relevant to the issues being determined. The appeals tribunal concluded therefore that the original decision did not appear to have considered this context in sufficient detail when it concluded that Ms Kokomane had not done a protected act and sent the case back to them to reconsider.
This case indicates that employers cannot presume that where an employee brings a complaint and where discrimination and specific legal terms in the Equality Act 2010 are not actually mentioned, that it will not necessarily amount to a protected act. If context suggests that discrimination may be at play, then an employer should address the issue explicitly during the internal process.