Whistleblowing, Protected Disclosures and Victimisation
In the appellant’s claim for victimisation, the ET had not asked itself the correct question when deciding that the claimant had suffered no detriment. The key test is: ‘Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?’ Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL applied.
Detriment is to be interpreted widely in this context. It is not necessary to establish any physical or economic consequence. Although the test is framed by reference to a reasonable worker, it is not a wholly objective test. It is enough that a reasonable worker might take such a view. This means that the answer to the question cannot be found only in the view taken by the ET itself. The ET might be of one view, and be perfectly reasonable in that view, but if a reasonable worker (although not all reasonable workers) might take the view that, in all the circumstances, it was to his detriment, the test is satisfied. It should not, therefore, be particularly difficult to establish a detriment for these purposes.
The ET had also not applied the correct legal test to the causation or ‘reason why’ question. The question was whether the protected act had a significant influence on the outcome. Chief Constable of West Yorkshire v Khan [2001] 1 WLR 1947 HL, Nagarajan v London Regional Transport [2000] 1 AC 502, Chief Constable of Greater Manchester v Bailey [2017] EWCA Civ 425 and Page v Lord Chancellor [2021] ICR 912 CA considered and applied.
The appeal was allowed and the victimisation claim was remitted for rehearing.
The respondent’s separate appeal against an order for costs was also allowed. The ET had refused an order for costs under rule 76(1)(a) of the ET Rules. It had no jurisdiction to make an order for the costs of an unsuccessful application for a stay under rule 76(1)(b) and its order under that rule was therefore set aside. Rule 76(1)(b) applies to ‘any claim or response’ which had no reasonable prospect of success. An application for a stay is not a ‘claim or response’ for these purposes. Definitions of ‘claim’ and ‘complaint’ in rule 1(1) considered.
Judges:
The Honourable Mr Justice Griffiths
Citations:
[2022] EAT 42
Links:
Jurisdiction:
England and Wales
Employment
Updated: 12 April 2022; Ref: scu.674552