When bringing a victimisation claim, workers have to show that they suffered a detriment or disadvantage. In Warburton v Chief Constable of Northamptonshire Police, the Employment Appeal Tribunal (EAT) held that, as the term “detriment” should be interpreted widely, it was not restricted to physical or economic consequences.
As part of his application to Northamptonshire police in November 2017, Mr Warburton mentioned that he had brought tribunal proceedings against Hertfordshire Constabulary for unlawful disability discrimination after it withdrew an offer to him. In January 2018, he was given a conditional offer by Northamptonshire police subject to passing their pre-employment checks. On 1 February, he was told that his application had been rejected because he had failed to meet their vetting requirements.
It then turned out that Northamptonshire had not actually started the vetting procedure because it was waiting for the outcome of the litigation against Hertfordshire. As a compromise, however, it agreed to start the process by writing to two other forces (West Midlands and Avon and Somerset) which he had also mentioned in his application. However, Avon and Somerset said it could not provide the necessary information because of ongoing litigation that Mr Warburton was pursuing against them. As a result, Northamptonshire put his vetting process on hold.
Mr Warburton brought claims of victimisation against the force under section 27 of the Equality Act 2010.
Section 27 states that victimisation occurs when a person is subjected to a detriment (disadvantage) by someone else because they have done a “protected act”.
Although the tribunal agreed that Mr Warburton’s tribunal claim against Hertfordshire Police was a protected act, he had not suffered a detriment as his application with Northamptonshire had not been rejected. Instead, it had just been put on hold.
However, the tribunal went on to say that if it was wrong on that count and Mr Warburton had suffered a detriment, it was not because he had brought proceedings against Hertfordshire, but rather because Avon and Somerset had not provided the information that was needed to progress his application. In other words, it was not due to a protected act.
Allowing the appeal, the EAT held that the tribunal had not asked itself the correct question when it concluded that Mr Warburton had not suffered a detriment.
Following the decision of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary, the key test was whether the treatment was of “such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his [sic] detriment”.
As the term “detriment” should be interpreted widely, it was not necessary to establish any physical or economic consequence. Although the test is framed by reference to a “reasonable worker”, the EAT made clear that it is not a wholly objective test. All that was needed was that a reasonable worker might take such a view. As such, the answer to the question was not just what the tribunal thought, but rather what the reasonable worker thought. If they took the view that, in all the circumstances, it was to their detriment, then the test would be satisfied. It should not, therefore, be particularly difficult to establish a detriment for these purposes.
The EAT also held that the tribunal had not applied the correct legal test to the issue of causation. In other words, the “reason why” question. In this case, it should have asked whether the protected act had a significant influence on the outcome. As it had not, the EAT remitted Mr Warburton’s victimisation claim for rehearing.
The case serves as a useful reminder that detriment is to be interpreted widely in the context of victimisation. The focus is on a “reasonable worker” and whether they would view the treatment as a disadvantage, not whether the tribunal itself would view it in that way if it were in the claimant’s shoes.