Victimisation - The EAT has demonstrated that tribunals need to apply the right reasoning

Victimisation is a particular kind of discrimination which occurs when an employer treats an employee unfavourably (a detriment) because they have done a ‘protected act’ or the employer believes that they have done, or may do, a protected act.

That protected act can include bringing a discrimination claim, raising allegations of discrimination, or being a witness in a discrimination claim. The EAT has looked at a case recently where the employment tribunal got things wrong in terms of what could constitute a ‘detriment’.

In Warburton v Chief Constable of Northamptonshire Police, the employee had brought a claim against another police force for discrimination. He had applied for a job and was made an offer which was then withdrawn. He applied for a job with another police force and said in that application that he had an ongoing discrimination claim against another police force. He also had outstanding complaints against other police forces. Northamptonshire Police said his application could not progress while he had outstanding complaints against other forces. They put his application on hold until the outcome of his discrimination claim. He brought a claim for victimisation. The employment tribunal agreed that the employee had done a protected act - bringing a discrimination claim - but said that there had been no detriment. Therefore, his victimisation claim failed. The employee appealed.

The EAT said the employment tribunal had got it wrong. They had referred to the wrong law - the rules about direct discrimination, rather than the law on victimisation. They had not asked the right question, which was ‘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?’. Instead, the tribunal had asked whether they - the tribunal - thought it was to the employee’s detriment. The correct test is whether the reasonable worker would consider the treatment to be a detriment, even if a reasonable tribunal did not, which is a much lower bar for an employee to get over. It filters out only acts which lead to the individual having an unjustifiable sense of grievance. Even if one reasonable worker takes the view that the treatment is to his detriment, that is enough, even if other reasonable workers do not think the same. The EAT said it should not be difficult for employees to establish detriment on that basis. The tribunal had also got the test of causation - the ‘reason why’ the employee’s application was placed on hold - wrong in this case. The correct question was whether the protected act - here the discrimination claim brought against another force - had a significant influence on the outcome. There wasn’t enough clear evidence for the EAT to substitute its own decision, so the claim was sent back to a different tribunal for a new hearing on the victimisation claim.

This case shows that establishing detriment is not difficult for an employee. All they have to do is show that a reasonable worker would consider that the treatment was detrimental. It is also a reminder that detriment itself is not enough for a victimisation claim. The employee must show that the protected act - here his discrimination claim against another force - had a material influence on the decision to pause the vetting process. In this case, the evidence wasn’t clear but did show that there were other issues at play including other complaints issued against other forces, which may have been more relevant to the decision to pause his application. The decision may not change in the long run, but the EAT has demonstrated that tribunals need to apply the right reasoning.

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