Is a detriment that is inextricably linked to and arises out of a protected act done because of the protected act?
Not necessarily, held the Court of Appeal in Greater Manchester Police v Bailey.
As is well known, the test in discrimination and victimisation claims is not a 'but for' test, but rather focuses on the reason why the decision maker took the decision.
Having settled claims of racial discrimination against the Greater Manchester Police (GMP), one of the terms of the agreement was that the Claimant would be seconded to another unit for two years. Well after two years, the secondment was terminated, although the Claimant was to remain working on the same operation in his capacity as a GMP officer, which meant that he would lose his entitlement to a car and travel expenses.
The employment tribunal upheld the claim of victimisation on the grounds that the secondment was only terminated because of "an agreement which is inextricably linked to, and arises out of, his protected act of bringing his previous proceedings. Hence, there is no escaping the fact that his treatment was 'because of' his having done a protected act". The employment tribunal erroneously applied the 'but for' test; the most important of a number of errors.
Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary .