Victimisation is defined in the Act as:

Treating someone badly because they have done a ‘protected act’ (or because the school believes that a person has done or is going to do a protected act).

There are additional victimisation provisions for schools which extend the protection to pupils who are victimised because their parent or sibling has carried out a protected act.

A ‘protected act’ is:

  • Making a claim or complaint of discrimination (under the Act).  
  • Helping someone else to make a claim by giving evidence or information.  
  • Making an allegation that the school or someone else has breached the Act.  
  • Doing anything else in connection with the Act.

If you do treat a pupil less favourably because they have taken such action then this will be unlawful victimisation.

There must be a link between what the pupil (or parent or sibling) did and your treatment of them. The less favourable treatment does not need to be linked to a protected characteristic.

For example:

A teacher shouts at a pupil because he thinks she intends to support another pupil’s sexual harassment claim. This would amount to victimisation.

Who is not protected?

A pupil who in bad faith gives false information or evidence (that is, that they knew was false) or makes an allegation that was false and given in bad faith would not be protected against victimisation. The original complaint/claim would not be affected providing it was not made in bad faith.

For example:

A pupil at an independent school with a grudge against his teacher knowingly gives false evidence in another pupil’s discrimination claim against the school. He is subsequently excluded from the school for supporting the claim. This treatment could not amount to victimisation because his evidence was untrue and given in bad faith.  

Victimisation for actions of parents or siblings

You must not treat a pupil less favourably because of something their parent(s) or sibling has done in relation to the making of a complaint of discrimination.

A parent of a pupil complains to the school that her daughter is suffering sex discrimination by not being allowed to participate in a metalwork class. If the daughter is treated less favourably as result of the complaint this would be unlawful victimisation. This applies to a child in relation to whom the parent(s) were making a complaint in relation to and also to any other children who are pupils at the school.

This also applies if a parent supports a teacher’s complaint against the school under Part 5 of the Act.

If the information or evidence was false and given in bad faith (that is, the parent/sibling knew it was false) or the allegation was false and given in bad faith then this protection for the pupil will still apply, provided that the pupil did not act in bad faith.

For example:

A pupil makes a complaint against his school claiming that he has suffered discrimination by a member of staff because of his sexual orientation. The pupil’s younger brother, at the same school, is protected against any less favourable treatment by the school because of this complaint, even if it is later found out that the older brother was not acting in good faith.

There must be a link between what the parent(s) or their child has done and you treating the child/sibling badly.

The child who is being treated badly does not need to have any of the protected characteristics.

The fact that a complaint/claim is not upheld does not mean that it was made in bad faith.  

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