This week’s case answers the following questions:

  1. What is a detriment for the purposes of victimisation under the Equality Act 2010?
  2. What is the correct test for causation?

Victimisation is being subject to a detriment because of a protected act. A protected act is defined at section 27 of the Equality Act 2010 as:

(a)bringing proceedings under this Act;

(b)giving evidence or information in connection with proceedings under this Act;

(c)doing any other thing for the purposes of or in connection with this Act;

(d)making an allegation (whether or not express) that A or another person has contravened this Act.

Mr Warburton had applied for a job with Northamptonshire Police, whilst having an ongoing Employment Tribunal discrimination claims against a former employer, Hertfordshire Constabulary.

An Employment Tribunal found that the discrimination proceedings amounted to a protected act but found that Mr Warburton had not been victimised by Northants Police.

Mr Warburton had been rejected for a job with Northamptonshire Police despite having been initially accepted following an assessment. The reason for rejection was that Mr Warburton had not completed the vetting process. The reason why Mr Warburton had not completed the vetting process was recorded in notes as:

Damian Warburton 14/05/1974 has applied for a role as a Police Officer. He has outstanding complaints with other Forces. He cannot be considered until these are resolved. He has been sent a letter explaining this. Once they are settled he is free to apply again.

When Mr Warburton emailed in and said he had a complaint of discrimination in against a Police force and that he had been victimised by Northants Police, Northants Police emailed as follows:

“On viewing the applicant’s vetting form, it was noted that he has several ongoing cases with Herts Police and Avon and Somerset Police. He is also taking Herts to the Employment Tribunal. It was decided that we would not start his vetting until the outcome of these cases are known. A letter was sent to him saying he is welcome to apply once they were concluded. A service request which was sent to him saying he is welcome to apply once they were concluded.”     

The Employment Tribunal concluded that Mr Warburton had not been victimised as the reason for not commencing the vetting process was because one force had not replied, Somerset and Avon,  and that not starting the vetting process in these circumstances was in accordance with Northamptonshire’s police’s vetting policy. There was therefore in the Employment Tribunal’s view no link with the protected act of bring discrimination proceedings and in any event Mr Warburton had not been subject to a detriment as Northants Police had acted in accordance with its vetting policy.

Mr Warburton appealed.

The Employment Appeal Tribunal [EAT] allowed the appeal and found as follows:

  1. That the Employment Tribunal had found a protected act, the discrimination proceedings against a former Police Force employer, Hertfordshire Police. This gave Mr Warburton protection from being subjected to a detriment
  2. That the Employment Tribunal had applied the wrong test in finding no detriment. The correct test is a broad test looking at the impact on the worker or employee rather than the actions of the employer. The correct 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?

3.Finally the EAT found that the Employment Tribunal had erred on the issue of whether the protected act was a cause of the detriment. The EAT identified the correct test as:

whether the protected characteristic or protected act “had a significant influence on the outcome” – is the correct test. And “the reason why” is to be preferred to “causation”

The EAT remitted the claim back to the Employment Tribunal to consider the issues afresh. In so doing the EAT recognised two important points:

  1. Detriment is to be given a wide meaning, in previous iterations of discrimination law detriment meant placing someone at a disadvantage.
  2. An employer might have a number of reasons for taking a decision, the key issue in a victimisation claim is whether the protected act had a significant influence on the outcome. Implicit in this is the probability that an employer will have more than one reason for any decision taken.