What is the case about?
In accordance with the Equality Act 2010, victimisation is defined when one person treats another person to a detriment either because that person has carried out a protected act or the first person believes the second person has carried out, or may carry out, a protected act.
A protected act includes bringing a claim under the Equality Act, giving evidence or information in connection to proceedings under the Act, doing any other thing for the purpose of or in connection with the Equality Act or making allegations, whether express or not, that somebody has contravened the Act.
In the case of Warburton v The Chief Constable of Northamptonshire Police  EAT 42 (14 March 2022), the Employment Appeal Tribunal considered what the test was for determining whether or not somebody had suffered a detriment for the purpose of victimisation, in accordance with the Equality Act 2010.
Mr Warburton had worked for Hertfordshire Constabulary and raised proceedings against them for unlawful discrimination. He subsequently applied to be a police officer for Northamptonshire Police and was successful in his application and so Northamptonshire Police commenced their vetting process.
However, Northamptonshire Police went on to withdraw the job offer citing that it was because Hertfordshire Constabulary failed to provide information meaning the vetting process couldn’t continue.
Mr Warburton though believed it to be because he had mentioned on his application form a protected act, i.e., he had taken proceedings against Hertfordshire Constabulary and went on to take proceedings against Northamptonshire Policy for victimisation claiming he had suffered a detriment.
The Employment Tribunal did not find in favour of Mr Warburton and that Northamptonshire’s actions did not amount to a detriment under the Equality Act 2010, he appealed and took his case to the Employment Appeals Tribunal (EAT).
The EAT considered the test for what would amount to a detriment and concluded that it should be interpreted widely meaning that the original tribunal should have determined whether a reasonable worker might take the view that the conduct was detrimental rather than whether a reasonable tribunal considered the actions to be a detriment.
This judgement found that the original tribunal applied the wrong test when considering the case and so it has been sent back to be heard by another tribunal.
The learning point from this case is more of a reminder of the test for determining whether victimisation has taken place. It is about whether a reasonable worker would or might take the view that they had been disadvantaged in the circumstances.
For employers who are dealing with grievances of alleged claims of victimisation, it is worth remembering to take account the employee’s view of what happened, and to particularly consider whether that view is a reasonable one to hold, given the circumstances.
We await the outcome of the re-hearing of this case back to the employment tribunal and it will be interesting if it arrives at the same conclusion when applying the correct test.
For further guidance on this topic please contact us or get in touch with us on 0844 324, 5840 and speak to a member of the team.