In the recent case of Warburton v The Chief Constable of Northamptonshire Police, the EAT has given helpful guidance on what amounts to a detriment for the purposes of a victimisation claim. Victimisation occurs where someone is subjected to a detriment for having done “a protected act” (e.g. issuing a tribunal claim or a grievance alleging a breach of the Equality Act 2010).
Mr Warburton applied to work with Northamptonshire police and in his application referred to an ongoing claim he had against another constabulary alleging discrimination. It was accepted that his other claim amounted to a protected act.
Northamptonshire police rejected Mr Warbuton’s application citing problems with his vetting information. Mr Warburton alleged it was because of his protected act and issued a further claim of victimisation.
In considering what amounts to a detriment, the EAT confirmed that it should be given a wide interpretation. The key test was whether “a reasonable worker would or might take the view that in all the circumstances [something] was to his detriment?”.
Hannah Pryce comments:
"The burden for proving something is a detriment for a victimisation claim has been confirmed as being a low one. It will be sufficient if a reasonable person considers it to be a detriment. The consequence of this case is that when defending victimisation claims greater focus will be placed on causation: in other words, was the detriment suffered because of the protected act. Where employers suspect an employee has done a protected act, they should carefully consider the justification for business decisions effecting that employee and where possible should retain evidence which demonstrates those decisions are not because of any protected acts."
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