June 26, 2015

Court of Appeal guidance on what constitutes a detriment

The claim concerned an individual who had brought a claim for sex discrimination during her employment, which had settled. After she left she requested a reference, but the professor of the university refused to supply one. She made a formal complaint (presumably, as this was in 2008, under the old statutory grievance procedures on the basis that, at the time, grievances could be brought by someone who had left). The grievance alleged that the refusal to provide a reference was influenced by the fact that she had brought an earlier claim and was therefore victimisation (detrimental treatment because of doing a protected act, in issuing a claim). The Tribunal found that she had not established any case of victimisation because there was no evidence to link the professor’s refusal to provide the reference with the fact that she had brought a sex discrimination claim against the university.

Prior to the Tribunal dismissing her claim the university had also rejected her grievance and appeal, as a result of which she brought two further claims alleging that the way in which the university dealt with the grievance and appeal amounted to victimisation because they were conducted less favourably than they would have been were it not for her earlier sex discrimination claim. She also applied, via a Subject Access Request as well as informally, for information and documents, which was rejected by the university and which gave rise to a further claim in the Tribunal alleging that this refusal was also victimisation.

All her claims were struck out by the Tribunal on the basis that the earlier Tribunal decision was evidence that her grievance would have failed regardless of how it had been conducted and, if the grievance was unfounded, there was no chance of her establishing less favourable treatment for a victimisation claim. This was upheld by the EAT.

However the Court of Appeal took the view that a detriment could arise out of a grievance process even if the grievance was going to fail because the individual had to show that they had been subjected to less favourable treatment and that they had suffered a detriment as a result. The Court of Appeal held that the Tribunal was wrong to conclude that, because her grievance was unfounded, there was no possibility that she could establish that she had been treated less favourably.

This case endorses the decision in Chief Constable of West Yorkshire Police v Khan, namely that the absence of a negative consequence does not prevent a victimisation claim from being well founded provided there has been some form of disadvantage suffered. The effect is likely to be in respect of compensation however.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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