What is the correct test to apply when determining if a Claimant has suffered a detriment for the purposes of a victimisation claim?
The 'Shamoon test', held the EAT in the case of Warburton v The Chief Constable of Northamptonshire Police.
The Claimant had applied to be a police officer with the Respondent. In his application he referred to what was accepted as being a protected act, namely proceedings that he was pursuing against Hertfordshire Constabulary, alleging unlawful discrimination after he made an application to join that force which resulted in an offer that was subsequently withdrawn. The Claimant was later told by the Respondent that his application form had not been accepted.
The Claimant pursued a claim for victimisation. The Respondent argued that the Claimant's application had not been unsuccessful because of the protected act but owing to the failure of another force (Avon and Somerset Constabulary) to provide information to allow the vetting procedure to proceed.
The EAT held the tribunal had not asked itself the correct question when deciding that the Claimant had suffered no detriment. The key test is "whether the treatment is of such a kind that a reasonable worker would, or might take the view that in all the circumstances it was to his detriment". The EAT concluded that detriment is to be interpreted widely. It is enough that a reasonable worker might take such a view, the answer to the question cannot only be found in the view taken by the tribunal.
The EAT concluded the tribunal had also not applied the correct test to the causation or 'reason why' test. The question was whether the protected act had a significant influence on the outcome.
Thanks to Kate Lea of didlaw for preparing this case summary.