Victimisation: the right not to remain silent

The Employment Appeal Tribunal (EAT) recently considered the case of Warburton v Chief Constable of Northamptonshire Police and outlined the proper test to determine whether a person has been victimised at work.

Mr Warburton brought a victimisation claim against Northamptonshire Police after an offer of employment was withdrawn due to, he thought, the fact that he had ongoing Employment Tribunal (ET) proceedings alleging discrimination against his former employer, Hertfordshire Constabulary. In the first instance, the ET rejected his claim. However, on appeal, the EAT found that the ET’s reasoning was unclear and sent the case back to the ET for a rehearing.

Victimisation may be overlooked by employers who are focused on preventing more obvious cases of discrimination and harassment. However, it is important for employers to be aware of victimisation as a separate avenue of claim open to employees and to understand what it is so that it can be prevented in their business to protect staff and avoid claims.

What is victimisation?

Victimisation in employment is essentially the mistreatment of a person who asserts their rights under the Equality Act 2010. Such rights include making a complaint of discrimination or bringing a claim of discrimination. These are called “protected acts”. It ensures that employees feel free to speak up without fear of reprisal if they have been discriminated against.

The test to establish victimisation is short and, as such, may appear simple: a person victimises another person if they subject that person to a detriment because they have done (or the victimiser believes they have done or may do) a protected act.

However, as the Warburton case shows, even the ET can ask itself the wrong questions when addressing whether someone has been victimised. The EAT set out the key elements of victimisation.

Detriment and causation

There was no doubt that Mr Warburton had done a protected act in bringing a discrimination claim against Hertfordshire Constabulary.

The next stage was to determine whether he had been subjected to a detriment. The EAT indicated that the term “detriment” should be interpreted widely and there is no need to show a physical or even an economical detriment. Establishing a detriment requires thinking about what treatment a reasonable worker would or might consider to be to their detriment in the circumstances.

Finally, the detriment must have occurred because of the protected act. There may have been many reasons for the detriment, but it will be sufficient for the purposes of a victimisation claim if the protected act had a significant influence on the resulting detriment to the employee.

Comment

This case serves as a reminder that there is a relatively low bar for employees to show that they suffered a detriment in a victimisation claim. A tribunal needs only then to find that the protected act significantly influenced the detriment suffered. Employers must be aware of the right not to be victimised and take steps to avoid victimisation claims, such as training staff and ensuring they understand that negative treatment of another member of staff seeking to assert their Equality Act rights will not be tolerated.

This case is also a stark reminder that Equality Act claims can arise during the recruitment process. Employers must be careful not to discriminate against or victimise a job candidate as doing so will give rise to a claim. Employers who become aware of a live claim against a previous employer during pre-employment checks may want to distance themselves from the candidate, but careful thought will be needed as this may give rise to a victimisation claim if the claim has a significant influence on the decision to withdraw an offer of employment.