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The Employment Appeal Tribunal (EAT) has held in Warburton v Chief Constable of Northamptonshire Police that a tribunal had not taken the right approach when determining whether a job applicant who complained of victimisation had suffered a detriment.  

The claimant applied to become a police officer with Northamptonshire Police and was given a conditional offer, subject to pre-employment checks, but was subsequently told that his application was unsuccessful because he had failed the vetting process.  It was then established that his application had not been rejected, but that the vetting process had been put on hold because he was pursuing proceedings for disability discrimination against Hertfordshire Constabulary.  He brought a claim of victimisation against Northamptonshire Police which the latter unsuccessfully applied to be stayed pending determination of the claimant's claim against Hertfordshire Constabulary.

The tribunal rejected the claimant's victimisation claim, but the EAT held that the tribunal's finding that the failure to progress the claimant's application did not constitute a detriment was an error.  It held that detriment should be interpreted widely and is not a wholly objective test.  The key test is "whether the treatment is of such a kind that a reasonable worker would, or might take the view that in the circumstances it was to his detriment".  The EAT also observed that it was not necessary to establish any physical or economic consequence, and the case was remitted for rehearing by a different tribunal.

The EAT also held that the tribunal should not have made a costs award under rule 76(1)(b) of the Tribunal Rules 2013 (which applies where a claim or response has no reasonable prospective of success) in respect of a failed application that Northamptonshire Police had made for a stay of proceedings.  An application for a stay does not fall within the definition of a "claim or response" in rule 76(1)(b).  The tribunal had expressly rejected the costs application made under rule 76(1)(a) and did not have the jurisdiction to make one under rule 76(1)(b).

Take note:  When determining whether a worker has suffered a detriment the test will be whether they reasonably take the view that the conduct was detrimental to them.  The test is a wide one, and it will be irrelevant if a reasonable tribunal takes an opposing view.


Emma Burrows

Partner, Head of Employment and Pensions

London

Emma Burrows

Anna Scott

Professional Support Lawyer

London

Anna Scott