Warburton v Chief Constable of Northamptonshire Police

Key legal principles: The Employment Appeal Tribunal held that the Employment Tribunal had misstated and not applied correctly the law on victimisation under section 27 of the Equality Act 2010. The correct test for detriment is the Shamoon formulation: whether the treatment was 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 proper test for the "reason why" (sometimes described as causation) is whether the protected act had a significant influence on the outcome, following Nagarajan, Khan, Bailey and related authorities.

Resulting findings: Because the ET did not state or apply these tests correctly and its reasoning was not sufficiently clear or supported, the EAT set aside the ET's findings on both detriment and reason why, remitted the victimisation claim for rehearing by a different tribunal and set aside the ET's costs order relating to an application for a stay under Rule 76(1)(b) of the ET Rules.

This appeal concerned a claim by the appellant, an applicant to join Northamptonshire Police, that the respondent victimised him by effectively halting his vetting/appointment process after the appellant disclosed that he had ongoing Employment Tribunal proceedings against another police force (Hertfordshire Constabulary). The Employment Tribunal found no victimisation. The appellant appealed that liability decision; the respondent cross-appealed a costs order relating to an earlier unsuccessful application for a stay.

The issues identified and determined by the EAT included:

• Whether the ET applied the correct legal test for detriment under section 27 Equality Act 2010 (the Shamoon test).
• Whether the ET applied the correct legal test for the "reason why" the alleged detriment was suffered, i.e. whether the protected act had a significant influence on the outcome (Nagarajan, Khan, Bailey).
• Whether the ET’s reasoning and explanations met the requirements of Rule 62 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
• Whether the ET had jurisdiction to award costs under Rule 76(1)(b) of the ET Rules in respect of an application for a stay.

The EAT held that the ET had misstated and failed to set out the correct law on victimisation, in particular confusing direct discrimination concepts with victimisation and failing to apply the wide Shamoon test of detriment. The ET’s analysis also blurred the distinction between whether detriment occurred and the reason why it occurred, and therefore its findings on both detriment and causation were unsafe. The EAT remitted the victimisation claim for rehearing by a differently constituted tribunal so that the correct legal tests can be applied to the factual evidence. On costs, the EAT found that Rule 76(1)(b) (no reasonable prospect of success) applies to claims or responses and does not extend to an interim procedural application for a stay; accordingly the ET had no jurisdiction to award costs under 76(1)(b) for a stay application and that award was set aside.

Nature of application / relief sought: liability for victimisation (section 27 Equality Act 2010) and, incidentally, costs orders in respect of earlier procedural applications.

Reasoning in brief: the EAT restated the controlling tests (Shamoon on detriment; Nagarajan/Bailey on "reason why" and the requirement of a significant influence) and concluded that the ET had applied incorrect legal formulations and insufficiently clear reasoning, requiring remittal; it also interpreted the ET Rules and their definitions to limit Rule 76(1)(b) to claims/responses rather than procedural case-management applications such as an application for stay.

Liability appeal allowed and remitted for rehearing by a different Employment Tribunal because the ET misstated and misapplied the law on detriment and the required "reason why" inquiry; Costs appeal allowed and the ET’s costs order under Rule 76(1)(b) in respect of an application for a stay set aside because Rule 76(1)(b) does not apply to that sort of procedural application.

Appeal from a liability decision of the Watford Employment Tribunal (liability hearing result: no well-founded victimisation claim). The EAT considered both the appellant's liability appeal (EA-2020-000376-AT) and the respondent's costs appeal (EA-2020-001077-AT) and handed down the judgment in [2022] EAT 42.