What is the test for determining victimisation?

This question has been answered recently by the Employment Appeal Tribunal in the case of Warburton v The Chief Constable of Northamptonshire Police [2022] EAT 42 (14 March 2022).

But what is victimisation…

 Victimisation occurs where one person subjects another person to a detriment because either:

a) The second individual has done a protected act; or

b) The first individual believes the second individual has done, or may do, a protected act.

What is a protected act?

The following are listed as protected acts under section 27(2) of the Equality Act 2010:

• Bringing proceedings under the Equality Act 2010 – this means that a person could be subjected to victimisation if they suffered a detriment for pursuing a claim for discrimination.

• Giving evidence or information in connection with proceedings under the Equality Act 2010 – this means that a person could be subjected to victimisation for assisting someone who was pursuing a discrimination claim.

• Doing any other thing for the purposes of or in connection with the Equality Act 2010 – this means that a person could be subjected to a victimisation if they suffer a detriment for raising a grievance in respect of a protected characteristic.

The test for detriment

When determining whether an employee has suffered a detriment the Employment Tribunal must determine “if a reasonable worker would or might take the view that they had been disadvantaged in the circumstances in which they had to work”.

However, in the case of Warburton v The Chief Constable of Northamptonshire Police the Employment Appeal Tribunal found that the Employment Tribunal had not applied the correct test when determining whether Mr Warburton had suffered a detriment.

The facts

Mr Warburton pursued a claim for victimisation because he applied for a role as a police officer with Northamptonshire Police, and within his application he informed them that he was pursuing a claim against Hertfordshire Constabulary for discrimination. Pursuing a claim under the Equality Act is a protected act.

Mr Warburton was later informed that his application to Northamptonshire Police had not been successful, as the vetting process had been put on hold pending the outcome of the claim against Hertfordshire Constabulary. In the circumstances, Mr Warburton pursued a claim for victimisation and argued he had suffered a detriment as a result of a protected act.

At the Employment Tribunal they decided that failing to progress Mr Warburton’s application did not amount to a detriment under the Equality Act 2010.

However, the Employment Appeal Tribunal decided that detriment should be interpreted widely and that the Employment Tribunal should have determined whether a reasonable worker might take the view that the conduct was detrimental, as opposed to whether a reasonable tribunal considered the conduct to be detrimental.

As the incorrect test was applied by the Employment Tribunal, the Employment Appeal Tribunal has sent the case back to be reheard by a different tribunal.

It will of course be interesting to see what the outcome of the rehearing is!

To conclude

The case provides an overview of the importance of applying the correct test when deciding whether someone has been subjected to a detriment. It should also act as a warning to employers as the Employment Appeal Tribunal consider that what constitutes a detriment should be interpreted widely, which could provide more scope for employees to succeed with a claim for victimisation.

If an employee has done, or may do, a protected act then I would recommend you seek legal advice before taking any action towards the employee. Whilst you may consider that the action is completely unrelated to the protected act, the employee may take the view they are being victimised. In the circumstances, it is best to be aware of the risks and ensure that you can justify any change or action taken, as well as demonstrating that the reason is completely unrelated to the protected act.

If you have any queries, please do not hesitate to contact myself of a member of our team and we will be happy to assist.

You can read the full facts and judgement of this case HERE