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What is a detriment in a victimisation claim?

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What is a detriment in a victimisation claim?

The Employment Appeal Tribunal (EAT) has informed us in Warburton v Chief Constable of Northamptonshire Police what a detriment is when a worker wants to claim victimisation as part of a discrimination claim.

Employment Partner Paul Burton discusses the implications of this definition for employers and looks at how they can deal with and mitigate such claims.

What does victimisation mean in the workplace?

People use the word ‘victimisation’ in everyday life to say they are being ‘picked on’.  However, in employment law it has a very specific meaning.

Under the Equality Act 2010 someone has been victimised when they suffer a detriment because they have already either:

  • Alleged they have been discriminated against, or
  • They have supported someone else in saying they have been discriminated. 

So, one of the key factors in such a claim is what amounts to a detriment.

What happened in this case?

Mr Warburton had applied to Northamptonshire Police to be a police officer.  As part of his application, he admitted the already had a claim against another police force for discrimination. 

His application was rejected by Northamptonshire Police, saying he could not be vetted properly. Mr Warburton did not believe this, instead alleging the rejection was due to his existing discrimination claim.

He therefore made a victimisation claim to the employment tribunal.

What did the Employment Tribunal find?

The employment tribunal held that Mr Warburton had the existing discrimination claim, the so-called ‘protected act’, but that he had not suffered a detriment because of it.

Essentially, the tribunal found that Mr Warburton’s application had not been rejected on the basis he had made the discrimination claim. Mr Warburton appealed to the EAT.

What did the EAT find?

The EAT decided that the employment tribunal had erred in law having asked itself the wrong question.

What is a detriment in employment law?

The EAT ruled that the test for deciding whether a claimant has suffered a detriment was determined in Shamoon v Chief Constable of the Royal Ulster Constabulary - "Is the treatment 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 said this could be widely interpreted and the employment tribunal could not substitute its own view on whether the treatment suffered is a detriment but had to use what a reasonable worker would think. 

The threshold for the test to be met is therefore quite low. Mr Warburton therefore succeeded with his appeal.

An Employment Solicitor’s View

Paul Burton, Employment Partner at the firm, says: “This case is a warning to employers that it is quite easy for workers to show a detriment if they suffer treatment as a result of an existing discrimination claim, even if it is against a third party.

Employers will need to show evidence that the reasons for the alleged detriment are nothing to do with the discrimination claim, but something else. 

In this case, Northamptonshire Police struggled to do so, i.e. that it was because of some vetting issue.”

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