Victimisation: was a recruitment decision connected to an applicant’s discrimination claim against a former employer a detriment?

EAT finds that Tribunal failed to apply the ‘reasonable worker test’.

Victimisation can be a deceptively difficult issue to determine. On the face of it, the Equality Act 2010 provides a simple definition for victimisation:

A person (A) victimises another person (B) if A subjects B to a detriment because-

(a)    B does a protected act, or

(b)    A believes that B has done, or may do, a protected act.

A ‘protected act’ is defined in elsewhere in the Act and includes making a claim or complaint of discrimination.  However, ‘detriment’ for these purposes is not defined in statute and courts and tribunals have interpreted it widely in this context. Case law indicates that a detriment need not result in economic or physical harm or loss. In determining whether a claimant has been subjected to a detriment, tribunals should apply the ‘reasonable worker test’ as established in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003], namely:

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?

Note that this does not mean all reasonable workers would have to take the view the treatment was to their detriment, it would be enough that one singular reasonable worker would do so.

There is therefore a three-step process to determine a victimisation claim:

1. Has the individual done a protected act?
2. If yes, might the employer or potential employer’s proposed action be viewed as a detriment by a reasonable worker or applicant?
3. If yes, was the detriment suffered because of the protected act?

A recent EAT decision highlights how an Employment Tribunal erred in their approach the question of whether the claimant has suffered a detriment.

Case details: Warburton v Chief Constable of Northamptonshire Police

Mr Warburton applied to be a police officer with Northamptonshire Police (NP). In his application he referred to proceedings he was bringing in the Employment Tribunal against another police force (his former employer) for unlawful discrimination and that he had several grievances outstanding against other police forces.

Following an interview, Mr Warburton was offered a position by NP on condition that pre-employment checks were completed. However, NP subsequently informed Mr Warburton that the vetting process could not be started, as NP were obliged to seek checks with Mr Warburton’s former employers and that police force would not provide the information whilst there were ongoing employment claims and grievances against them. NP informed Mr Warburton that once the outstanding claims and matters with other police forces were resolved, he would be free to apply to NP again.

Mr Warburton subsequently brought a victimisation claim in the Employment Tribunal against NP on the basis that the failure to process his application was a detriment visited on him because of a protected act, namely that he had brought claims against a former employer under the Equality Act 2010.

First instance and EAT decision

NP did not dispute that Mr Warburton’s claims against former employers amounted to a protected act. The ET dismissed Mr Warburton’s victimisation claim on the basis he had not suffered a detriment ‘because of’ his protected acts, stating that the decision not to proceed with his application was rather ‘because of’ the other police forces’ decision not to provide the information needed by NP to proceed with his vetting, which was in line with NP’s policies and guidance.

Mr Warburton appealed this decision, partly on the basis that the wrong test had been applied by the ET to determine if a detriment had in fact been suffered.

The EAT confirmed that the correct test for determining a detriment in Equality Act claims is the ‘reasonable worker test’, as per Shamoon. As noted above, the relevant question is whether one singular reasonable worker would, or may, take the view that they had suffered a detriment. By skipping this test and simply considering if NP’s actions were ‘because of’ Mr Warburton’s protected acts, the Tribunal had incorrectly substituted its own view that Mr Warburton’s treatment was not detrimental.

The EAT concluded that there was not enough evidence to clarify that the ET had properly determined the detriment issue when striking out Mr Warburton’s claim and subsequently ordered the case be remitted back to the ET for consideration on this point.

Comment

This case highlights the risks employers face making recruitment decisions when taking into account complaints against former employers, which may amount to a protected act. This type of situation puts potential employers in a very difficult position and care will be needed in deciding how to manage it. In particular, employers should consider whether their recruitment process is robust enough to deal with situations where a job applicant discloses they have claims ongoing against a former employer and to mitigate the risks of a victimisation claim.

Many employers will not need to make enquiries about any ongoing disputes with former employers, but employers in certain sectors (e.g. those working in schools) may be more likely to find out about such disputes as a result of prescribed vetting or safer recruitment procedures, such as in the above case.  

It is important to note that the ‘reasonable worker test’ is a relatively low bar to meet, so in most cases the question of an employer’s or potential employer’s liability for victimisation will rest on whether or not the detriment was suffered because the protected act was carried out.

Employers would be well advised to keep good records of the recruitment process and to seek legal advice before making any definitive decisions.