Mark Humphreys writes for our monthly column “View from Littleton Chambers” in Tolley’s Employment Law Newsletter. This article first appeared in the March 2015 edition.
Detriment is a concept that plays an important role in employment law. Under s 47B of the Employment Rights Act, it is unlawful to subject a worker to a detriment on the ground that they have made a protected disclosure (so-called whistleblowers); s 27 of the Equality Act (the victimisation provisions) gives similar protections against suffering detriment for having done a protected act.
What might constitute a detriment was a central theme in Deer v University of Oxford  EWCA Civ 52, before the Court of Appeal. Dr Deer was seeking to pursue a victimisation discrimination claim, brought under the Sex Discrimination Act (SDA), which was founded on alleged acts done by the university after she had ceased to be an employee. To succeed in such a claim, a claimant must show they have been subject to less favourable treatment (necessary to establish the discrimination) and that they have suffered a detriment; the latter requirement arising from s 20A of SDA providing protection after the employment relationship has ended.The meaning of detriment is not set out in statute; however, case law provides that a detriment exists if a reasonable person would or might take the view that the employer’s conduct had in all the circumstances been to their detriment. While the concept of detriment is thus determined from the point of view of the claimant, an unjustified sense of grievance cannot amount to a detriment. The classic statement is to be found in Shamoon v Chief Constable of the Royal Ulster Constabulary  UKHL 11 per Lord Hope at .Dr Deer’s claims on this point related to the way in which the university had dealt with a grievance and appeal she had brought. The tribunal dismissed those claims on the ground that the grievance had no merit. On this reasoning, the grievance would have failed irrespective of how it was conducted and what procedure was adopted and so there was no detriment.
The Employment Appeal Tribunal (EAT) upheld the approach adopted below, finding that the underlying concept sustaining the decision was: if the substantive grievance is in fact unfounded, it will not be possible to demonstrate that the comparator would have been treated any differently, or that the claimant has suffered any detriment.The Court of Appeal upheld the appeal on this point. There will be cases where failures of procedure, and more generally the way a grievance is handled, may give rise to a detriment, irrespective of the substantive outcome. Thus, if Dr Deer could establish that she had been less favourably treated in the way the procedures were applied or the conduct of the grievance, and that the reason for such treatment was that she was being victimised for having made a discrimination claim, she would have “a legitimate sense of injustice which would in principle sound in damages”.
This reasoning must be correct. To establish detriment, it is not necessary to demonstrate some physical or economic consequence — a point made by Lord Hope in Shamoon — and a tribunal can make an award for injury to feelings without having to find some other loss or damage. From a claimant’s point of view, it must be reasonable to regard the different application of a grievance or appeal procedure as unjust in and of itself. The fact that a claimant’s grievance would have failed anyway will be relevant to any compensation awarded, but clearly on this authority it is not sufficient to defeat the claim.