In Chris’ latest Coffee Break Briefing, he explores the different types of statutory leave, highlights the key enforcement risks and potential claims and outlines the latest changes and new entitlements employers need to be aware of.
In order to succeed in a claim for discrimination, employees must normally prove that they have suffered some form of detriment. There is no statutory definition of a detriment and the House of Lords has said that this requires nothing more than “treatment of such a kind that a reasonable worker would or might see as being to his or her detriment”. This is extremely wide and it is therefore often difficult to determine whether an employer’s acts or omissions amount to a detriment or not.
The Employment Appeal Tribunal (EAT) has recently considered the meaning of a 'detriment' in Bayode v Chief Constable of Derbyshire. A police officer appealed to the EAT on the issue of whether the mere act of a written record being made, where there was no inappropriate action, could amount to a detriment in the context of race discrimination.
The facts of the case were as follows. Colleagues of the police officer had recorded details of an incident in their pocket note books, before passing the comments on to more senior members of staff. The police officer had not known of these written comments until disclosure in the Employment Tribunal proceedings relating to his claim for race discrimination.
The Employment Tribunal concluded that these comments were recorded because the authors thought the police officer might make allegations of race discrimination, and they wished to have a record of what had been said. The police officer did not succeed in his claim and he appealed to the EAT.
On appeal, the police officer argued that the tribunal had failed to consider the detriment arising from the recording of the comments. He submitted that the effect of the entries on him should have been considered, and this effect constituted a detriment. The EAT rejected this submission and concluded that although the term ‘detriment’ is widely defined, the tribunal had correctly concluded that the making and content of the notebook entries did not amount to a detriment.
This case is important as it indicates that an employer’s act in taking notes of an incident will not, by itself, amount to a detriment. In light of this case, there is no need for employers to exercise caution when keeping written records of incidents which take place in the workplace. It is good practice to keep a written record of all meetings and events which take place, particularly where litigation may result, as contemporaneous notes can really assist when defending Employment Tribunal claims.
Read the other articles in this newsletter:
48-hour week opt-out to remain
"Self-employed" workers can claim unfair dismissal
Consultation regarding new right to request training
Q and A - The 48-hour week
STOP PRESS - New Equality Bill
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