Tribunal decision broadens the definition of detriment. What you need know
For responsible employers, a protected disclosure from one of their employees is a sign that all is not well within the organisation and that action is needed to rectify matters; the whistleblower will have done them a service and they would not conceive of taking retaliatory action against them. However, not all employers think this way and there are many ways that a person’s life can be made difficult by someone who’s determined to do so.
What does the law say?
Section 47B of the Employment Rights Act 1996 (ERA) says that:
“A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”
It goes on to say that if another worker of the employer (or an agent of the employer with their authority) subjects the claimant to a detriment, the law will treat that as being done by the employer, regardless of whether the employer knew about it or approved it, unless the employer can show that they took all reasonable steps to prevent it from happening.
What is a detriment?
Detriment occurs when a worker is treated in a way that is demeaning or damages their interests – for example, they might be denied training opportunities, or put on duties below their position. Degrading or humiliating comments might be made, a reference might be withheld, grievances could be ignored or dealt with in a dilatory manner.
In addition to making a protected disclosure, there are other employment rights that are protected in this way. They are:
Rights to statutory holidays and rest breaks at work
National minimum wage
Taking part in trade union activities
Health and safety
Employees have further protection above and beyond that of workers; they are also protected from detriment for exercising the following rights:
Asking for time off for study or training if they’re a young employee
Asking for family leave
Asking for flexible working
Two key cases
The ERA doesn’t clearly define “detriment” but a court case, Shamoon v Chief Constable of the Royal Ulster Constabulary (2003), went all the way to the House of Lords. In this case, it was ruled that a detriment would occur if:
“a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work.”
In 2019, another court case, that of Tiplady v. City of Bradford Metropolitan District Council further developed the definition when it was ruled that a detriment must be suffered in the field of employment, not in a private capacity. The broad definition contained in Shamoon is something that, were tribunals to interpret it generously, could prove troublesome for employers, although it hinges on the definition of a reasonable worker. What a tribunal is not allowed to do, however, is substitute their opinion for that of the hypothetical reasonable worker, which is what happened in a recent case.
The case was that of Mr D Warburton v The Chief Constable of Northamptonshire Police
Mr Warburton applied for a position as a police officer with Northamptonshire Police. In his application email, he referred to proceedings he was bringing in an employment tribunal against Hertfordshire Police, alleging unlawful discrimination. He had made an application to join that force, which had resulted in an offer, which was subsequently withdrawn. He then brought a claim of discrimination on the grounds of disability.
Northamptonshire Police made him a conditional offer, but he was later told that he had failed the force’s vetting process. This was further clarified to state that the process had in fact been put on hold while his claim against Hertfordshire Police was being dealt with.
Mr Warburton believed that this was victimisation because of the fact that he had brought the claim against Hertfordshire Police. He said his solicitor would be in touch “regarding the victimisation that you [Northamptonshire Police] have now committed”.
He then made a claim of victimisation to the Employment Tribunal (ET). However, the ET didn’t agree. They said that although Mr Warburton’s claim against Hertfordshire Police was a protected act under Section 27 of the Equality Act 2010, it did not agree that placing the vetting on hold was either a detriment or connected in any way with that protected act. They said that:
“The Respondent [Northamptonshire Police] did not progress the Claimant’s [Mr Warburton’s] vetting process because of the ongoing Employment Tribunal proceedings with Hertfordshire Police, but more importantly because of the failure of Avon and Somerset Police to provide the information which had been requested on numerous occasions and which they appeared to have refused to disclose.”
Mr Warburton then appealed to the Employment Appeal Tribunal (EAT) which upheld his appeal. It referred back to the Shamoon case, and asked
“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?”
The EAT felt that it was. In their judgment, they said
“Although the test is framed by reference to “a reasonable worker”, it is not a wholly objective test. It is enough that such a worker would or might take such a view. This is an important distinction because it means that the answer to the question cannot be found only in the view taken by the ET itself. The ET might be of one view, and be perfectly reasonable in that view, but if a reasonable worker (although not all reasonable workers) might take the view that, in all the circumstances, it was to his detriment, the test is satisfied. It should not, therefore, be particularly difficult to establish a detriment for these purposes.”
The EAT went on to say, and this will be a key point for future judgments, that:
“Detriment is to be interpreted widely in this context. It is not necessary to establish any physical or economic consequence.”
They concluded that the ET judgment both on whether Mr Warburton was subjected to a detriment and on the reason why he was (if he was) was based on misstatements of the law and was not sufficiently supported by clear and correct reasoning on either issue. It therefore could not stand.
What should employers bear in mind?
It is clear from what the EAT said that the threshold for establishing that a detriment has happened is low. Once that has been determined, the attention of a tribunal will likely turn to the other elements of a victimisation claim, specifically whether the cause of the detriment can be proven to be the protected act. It is here that the employer can regain some ground if they can show that there was no causation. However, this will require fairly comprehensive documentation of the process leading to the detriment, and therefore employers need to ensure that, as a matter of practice, they create and retain such documentation.
Unless you have in-house legal support, you may well struggle to tick all the boxes that a successful defence of a tribunal claim requires. It therefore follows that obtaining reliable legal advice early – when writing your policies and procedures, and training your staff, if possible – will stand you in good stead when it comes to dealing with claims made against you.