What Amounts to a Detriment?

Under the Equality Act 2010, if a worker alleges that they have been treated less favourably because of a protected characteristic, for example sex, and they are then treated less favourably and suffer a detriment because they made that allegation, the worker will have been victimised. One question which often arises in victimisation claims is: “What can amount to a detriment?” Some detrimental acts will be obvious, for example not offering a job to a worker because they were pursuing a claim for discrimination. However, some acts may be less so.

In Deer v University of Oxford, the Court of Appeal considered whether the way in which a grievance process was conducted could amount to a detriment, even if this would not have affected the final grievance decision. Ms Deer alleged that she had not been provided a reference by the University because she had pursued a discrimination claim against them a couple of years before. She raised a grievance regarding this and alleged that the University conducted the process in a discriminatory way in that the investigation was defective and certain avenues had not been explored.

The Employment and Appeal Tribunals struck Ms Deer’s claim out in this regard on the basis that as the grievance would have failed however it was conducted, she would not have suffered any detriment. The Court of Appeal disagreed with this assessment, stating if a worker can show that they have been treated less favourably in the way in which the procedures were applied, and the reason for this was the worker being victimised for lodging a discrimination claim, they would have a legitimate sense of injustice which could amount to a detriment. Importantly, the Court went on to state:

The fact that the outcome of the procedure would not have changed will be relevant to any assessment of any compensation, but it does not of itself defeat the substantive victimisation discrimination claim.

What can amount to a detriment, therefore, is fairly wide. Care must be taken when going through any process with a worker who has complained about alleged discriminatory acts. You should ensure that you are not, for example, carrying it out in a less thorough way compared to someone who has not raised such complaints. Any difference in the process could be interpreted as being because the worker has raised these complaints, which could then lead to arguments that they have suffered a detriment as a result.

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James Tamm

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