Employers urged to be cautious when determining whether a worker has suffered victimisation following Employment Appeal Tribunal decision

A case in the Employment Appeal Tribunal (Warburton v Chief Constable of Northamptonshire Police) has emphasised the need for employers to be wary of workers bringing claims for victimisation, as a wide interpretation has been applied to what constitutes a ‘detriment’. The Warburton case centred around a police officer who alleged that he had been refused employment with Northamptonshire Police because he had outstanding Employment Tribunal proceedings based on allegations of discrimination (in breach of the Equality Act 2010) against another police force.

The law

The legal test to be applied when bringing a claim for victimisation is set out in the Equality Act 2010, which states that an individual cannot be subjected to a detriment if they do (or are believed to have done, or may do) a protected act. What constitutes a protected act is set out in s27(2) of the Equality Act 2010 but in summary requires an individual to have made allegations (or provide evidence in relation to allegations made by someone else) of discrimination by an employer in contravention of the 2010 Act.

The impact of the Warburton case

The case of Warburton has set out the importance of having a clear understanding of the legal test for discrimination and applying it methodically and rationally to each set of facts especially when considering whether the individual involved has been subjected to a detriment. The case has given a wide interpretation of the definition of detriment, with the EAT referring to the concept of “the reasonable worker” with a key question being whether a reasonable worker would or might take the view that in all the circumstances that action by the employer was to their detriment. On that basis, it is not relevant whether the employer or the Tribunal believe it to be a detriment, but rather the emphasis is on the worker’s reasonable view (thus widening the scope).

When assessing whether there has been a detriment, it is useful to keep in mind the following:

• It is a wide test;
• The test is not completely objective – the emphasis is on the reasonable worker and whether a reasonable worker would, or might, conclude that a detriment has occurred;
• There is no requirement for physical or economic consequence for an act to be declared a detriment.

The case also confirms that when assessing whether or not the act has ‘caused’ the detriment, the question is whether or not the act in question has a “significant influence” on the consequence, but it need not be the sole cause.

What is the main takeaway for employers?

A wide interpretation of the definition of detriment may mean that more workers could be successful in their claims for victimisation, as it is now a lower threshold to meet.

When faced with the prospect of taking any action against an employee who could potentially be viewed as having undertaken a protected act (i.e. who has raised allegations of discrimination whether informally or formally) employers should exercise caution and clearly apply the above legal test to determine whether their action would constitute a detriment, and ask themselves whether a reasonable worker would, or might, conclude that the action contemplated by the employer would be detrimental to them. Failure to do so could mean more workers are successful with their claims under s27 of the Equality Act 2010.

For more information on this article, please contact Kirsten Currer or Amy Grant.