The concept of victimisation was introduced as part of the Equality Act 2010 to deal with treatment of individuals who suffer detriment from an employer as a result of certain “protected acts”.
In general, the Equality Act prevents discrimination or harassment on the basis of certain defined “protected characteristics” including age, sex, race, and disability (see full list in Section 4 of the Act). Broadly, this means that if an employee is treated less favourably by their employer because of the employee possessing one or more of the protected characteristics, they can raise a claim for discrimination and/or harassment.
If an employee brings a discrimination or harassment claim (or even makes an allegation that they have been discriminated against, for example, in a grievance), and is then subjected to a detriment by their employer as a result, the employee can raise an additional claim for victimisation. It’s worth noting that these protections can extend to those who raise concerns about the discrimination or harassment of a colleague.
A crucial question therefore arises in bringing a successful claim for victimisation in that, what can be regarded as detriment to the employee?
What can constitute a detriment?
The test for establishing detriment in victimisation cases is an objective one. Broadly, would a reasonable worker take the view that he or she had been subject to a disadvantage in the circumstances in which they had to work. There must then be a causal link between the disadvantage and the protected act carried out by the employee (i.e. the detriment must have occurred ‘because of’, for example, the employee brining a claim for age discrimination, or must have at least been significantly influenced by the claim).
The concept of “detriment” was discussed in the very recent case of Warburton v The Chief Constable of Northamptonshire Police. The Claimant had applied to be a police officer, and had mentioned in his application form that discrimination proceedings were ongoing between himself and Hertfordshire Constabulary. He regarded this as his “protected act”. After his job application with Northamptonshire Constabulary was unsuccessful, he claimed that he had been victimised.
The Tribunal took a very liberal view as to what could be regarded as detriment for these purposes. It was not necessary to establish any physical or economic consequence as a result of the employee’s protected act. Indeed, it was not necessary for the tribunal to come to the conclusion that a reasonable worker would regard it as detriment. It was simply enough for the tribunal to conclude that a reasonable worker might regard the consequence of the protected act as detriment. As such, the key question ought to be “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?”. This is an extremely wide interpretation of what might constitute detriment and introduces some further subjective leeway for the tribunal when placing themselves in the shoes of a reasonable worker.
If you require advice about any of the issues highlighted here, please contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Ethan Laing, Trainee Solicitor
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