What is the test for determining whether a Claimant has suffered a detriment for the purposes of a victimisation claim?

Under the Equality Act 2010 a person (A) victimises another person (B) if A subjects B to a detriment because:

  • B does a protected act; or
  • A believes that B has done, or may do, a protected act.

A protected act includes the making of allegations of contraventions of the Equality Act, as well as the bringing of proceedings under the Act.

In the recent case of Warburton v The Chief Constable of Northamptonshire Police, the Employment Appeal Tribunal (EAT) set out the statutory test, which provides a useful restatement of the legal principles and a reminder to Employers that the bar is not set very high.

The background to the case is that the Claimant (W) had applied to be a police officer with Northamptonshire Police.  In his application he stated that he had ongoing tribunal proceedings against Hertfordshire Constabulary. These had been brought on the grounds of disability discrimination after he had made an application to join that force the outcome of which was that an offer made to him had been withdrawn.

W was interviewed and received a conditional offer from Northamptonshire Police, subject to pre-employment checks.  W was subsequently informed that his application had been unsuccessful as his vetting process was on hold until Northamptonshire Police could obtain more information from the other police force to which W had applied but had been rejected.

W lodged a claim for victimisation, alleging that the rejection was due to a protected act (namely his ongoing discrimination claim against another police force). The Respondent, Northamptonshire Police, argued in defending the claim that W’s application had not been successful owing to the failure of another force to provide information to allow its vetting process to proceed.

The Employment Tribunal held that W had done a protected act but that he had not suffered a detriment as a result.  He appealed on the grounds that the Tribunal had erred in law by misstating the test for victimisation.

The EAT allowed the appeal, holding that the Tribunal had not asked itself the correct question when deciding whether W had suffered a detriment.

The key test is “whether the treatment is of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment”.  The EAT concluded that detriment is to be interpreted widely; it is enough that a reasonable worker might take the view that the conduct was detrimental.  It is not necessary to establish any physical or economic consequence.

The EAT also concluded that the Tribunal had not applied the correct test to causation, in other words the reason why W had suffered a detriment.  The correct question to ask is whether the protected act had a significant influence over the outcome.

What this means for employers

 This is not great news for employers, as the case underlines that there is a low bar for an employee to be able to establish a detriment, with actual physical or economic consequence necessary.  Once a detriment has been established the Tribunal will turn its attention to whether the detriment was because of a protected act.

Employers should look at their recruitment processes and consider whether their procedures are robust enough to mitigate the risks of a such a claim. In this case, apparent mere delay in the administrative process was enough to lead to a finding that there had been a detriment suffered.   Any decisions taken by an employer where it is likely a detriment will be established must be carefully considered and reasons for reaching a particular decision should be documented, so that there is evidence to support any necessary defence to the allegation that the outcome is linked to the employee having done the protected act.