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Victimisation: “Detriment” should be given a wide meaning

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By Ceri Fuller & Hilary Larter

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Published 07 April 2022

Overview

The EAT has held that a tribunal should interpret the meaning of “detriment” widely when considering if a claimant has suffered victimisation.

 

The Facts

Mr Warburton applied to the Northamptonshire Police to become a police officer. He was given a conditional offer but subsequently told that he had failed the vetting process. He was then told that the decision was not definitive and that the vetting process had been put on hold due to the fact that he was bringing a disability claim against Hertfordshire Police.

Mr Warburton unsuccessfully claimed in the employment tribunal that he had been victimised. The employment tribunal held that the delaying of a vetting process was not a detriment. Mr Warburton appealed to the EAT.

The EAT upheld his appeal, holding that the tribunal had been wrong to find that the failure to progress Mr Warburton’s application was not a detriment. The key test is: “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?”. “Detriment” should be interpreted widely. The test is not a completely objective one but depends on the view of a reasonable worker, not on the view of the tribunal. It is also not necessary to establish that there is any physical or economic consequence of the detriment.

The case was remitted for a rehearing.

 

What does this mean for employers?

This is not a good news case for employers. This judgment potentially widens the scope for individuals to claim successfully that they have been victimised for making complaints about discrimination.

Mr D Warburton v The Chief Constable of Northamptonshire Police 

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