D Warburton v The Chief Constable of Northamptonshire Police

For victimisation under section 27 of the Equality Act 2010, detriment is interpreted widely. The question is whether a reasonable worker would or might regard the treatment, in all the circumstances, as detrimental. No physical or economic consequence is required. The tribunal's own reasonable view is not conclusive.

The statutory reason why inquiry is whether the protected act had a significant influence on the outcome. It is not a conventional causation exercise and does not require the protected act to be the principal reason.

Under rule 76(1)(b) of the Employment Tribunal Rules, an unsuccessful procedural application for a stay is not a claim or response. Costs for such an application cannot be awarded under that limb.

The claimant applied to join the respondent police force. He disclosed proceedings under the Equality Act 2010 against Hertfordshire Constabulary. The respondent initially did not commence, and later put on hold, his vetting while information from other police forces remained unavailable.

The Employment Tribunal dismissed his victimisation claim. It held that he had suffered no detriment and, in any event, that the proceedings against Hertfordshire had not caused the treatment. In a later costs decision, it awarded the claimant costs of the respondent's unsuccessful application for a stay under rule 76(1)(b) of the Employment Tribunal Rules.

There were cross-appeals. The central issues were the correct tests for detriment and the reason why in victimisation, and whether rule 76(1)(b) authorised costs in respect of a procedural stay application.

1. Liability appeal allowed. The Tribunal misstated the law governing victimisation under section 27 of the Equality Act 2010. It set out tests for direct discrimination and comparators, although neither formed part of a victimisation claim.

2. Applying Shamoon, detriment must be construed widely. The correct question is whether a reasonable worker would or might view the treatment, in all the circumstances, as detrimental. The test does not require physical or economic loss. It is not wholly objective: the Tribunal's own view cannot answer the question if a reasonable worker might take the contrary view. The Tribunal's reasoning mixed the identification of treatment, the respondent's reasonableness, and the reason why. It did not demonstrate application of the correct test.

3. The reason-why inquiry asks why the alleged discriminator acted. A protected act need not be the sole, operative or principal reason. It suffices that it had a significant influence on the outcome. The Tribunal's references to an operative or effective cause, and its unclear findings about the respective influence of the protected proceedings and missing information, meant that its conclusion could not safely stand.

4. The EAT could not substitute factual findings. The victimisation claim was remitted for a rehearing before a differently constituted Employment Tribunal.

5. Costs appeal allowed. Rule 76(1)(b) concerns the underlying merits of a claim or response. It does not extend to an ordinary case-management application for a stay. Such conduct may instead be addressed, where its conditions are met, under rule 76(1)(a). The costs order was made without jurisdiction and was set aside.

• Employment Appeal Tribunal: Allowed the claimant's appeal from the Employment Tribunal's dismissal of the victimisation claim and remitted it to a different Tribunal. Allowed the respondent's appeal from the subsequent costs order and set that order aside.
• Employment Tribunal: Dismissed the claimant's victimisation claim. Subsequently awarded costs of an unsuccessful stay application under rule 76(1)(b) of the Employment Tribunal Rules.