What is the correct test to apply when determining if a Claimant has suffered a detriment when making a victimisation claim?

The Shamoon test says the Employment Appeal Tribunal (EAT) in Warburton v The Chief Constable of Northamptonshire Police.

This article discusses:

• The case
• What does this decision mean in practice?

The case

Mr Warburton (the appellant) had applied to be a police officer with Northamptonshire Police. In his application, the appellant referred to and gave details of proceedings he was bringing against Hertfordshire Constabulary for unlawful discrimination. This was accepted and treated as what is known as a protected act.

The appellant was later informed that his application had been unsuccessful because he had failed to meet the police force’s requirements in respect of vetting.

In response, the appellant pursued a claim for victimisation against The Chief Constable of Northamptonshire Police (the respondent).

The respondent argued that they had decided to not start vetting the appellant until the outstanding claim against Hertfordshire Constabulary had been resolved. They said the appellant’s vetting hadn’t been rejected, it just simply hadn’t commenced yet.

Notwithstanding this, the respondent sent enquiries to two other police forces, one of which was reluctant to provide any information in relation to the appellant because he had previously complained about them sharing his information. The respondent told the appellant that they could not proceed with his vetting until all the necessary information had been received and the appellant’s application was subsequently put on hold.

The Employment Tribunal (ET) found that the appellant had not suffered any detriment and therefore the claim for victimisation failed. However, the EAT held that not only did the ET get the legal test for victimisation wrong, they also asked the wrong question when deciding whether the appellant had been subject to detriment. The correct question is whether the treatment is of such a kind that a reasonable worker would or might take the view this is to their detriment. A wide interpretation of the word detriment was necessary to ensure that the answer to the question cannot only be found in the ET’s view alone.

The EAT also concluded that the ET had failed to apply the correct test for causation, concluding that instead they should ask whether the protected act had a significant influence on the outcome.

What does this decision mean in practice?

Practically, if someone believes that they have suffered a detriment because of a protected act, then as long as a reasonable worker might take the view that certain treatment is to their detriment, the test is satisfied.

In this context, employers and prospective employers need to be alive to the reality that, by applying this test, it isn’t going to be particularly difficult for individuals to establish detriment. Extra care should therefore be taken when protected acts are involved.

If an employee has made a claim against your business or raised a grievance about discrimination, this may be a protected act, so you should ensure that employees are not subjected to a detriment as a result.

Our employment team can assist you with any grievances or tribunal claims or any other employment related matter. To discuss further call Stacey Cox on 0114 266 6660 or email at [email protected] 

Published 22/03/22