Warburton v Chief Constable of Northamptonshire Police

In brief

Employment Appeal Tribunal, judgment 14 March 2022 (hearing 24 Feb 2022). MR JUSTICE GRIFFITHS, SITTING ALONE (confirmed — no lay members at the EAT; the original Watford ET below sat as EJ + 2 members, referenced at [83]. Do not conflate). TWO CONSOLIDATED APPEALS, ONE JUDGMENT — two separate legal questions: (1) LIABILITY APPEAL (EA-2020-000376-AT, Warburton's) — ALLOWED. The Watford ET misstated the law on BOTH limbs of EA 2010 s.27; remitted for rehearing by a DIFFERENT ET. (2) COSTS APPEAL (EA-2020-001077-AT, the Chief Constable's) — ALSO ALLOWED. The ET had no jurisdiction under Rule 76(1)(b) ET Rules to award costs on an unsuccessful stay application; award set aside ([84]-[103]). A DISTINCT holding — do not merge it into the victimisation ratio. FACTS (precisely — our old record was loose): Warburton applied to the RESPONDENT, Northamptonshire Police, on 3 Nov 2017. The protected act was his ONGOING ET proceedings against a THIRD force, Hertfordshire Constabulary, over an earlier failed application there ([3], [47]). His Northamptonshire vetting stalled, attributed variously to the Hertfordshire proceedings and to a FOURTH force, Avon and Somerset, failing to supply vetting information ([5], [21]). So: applying to force A while suing force B over a separate earlier application, with force C the vetting bottleneck. NOT 'suing his own force' — he was not employed by any of them. THE TWO-LIMB s.27 FRAMEWORK (the practice value): DETRIMENT — Shamoon (Lord Hope) [48], [50]-[51]; CAUSATION — Nagarajan 'significant influence' [62]-[65], tied together via Chief Constable of Greater Manchester v Bailey [2017] EWCA Civ 425 (Underhill LJ at [12]) at [65]-[66]. A tight, citable framework for any s.27 analysis.

Key provisions

• [46]-[47] — s.27 EA 2010 quoted verbatim; protected act undisputed: The statute set out in full; protected act = bringing and continuing the Hertfordshire ET proceedings — framework — use [46] as the clean s.27 quote for any victimisation pleading.
• [48], [50]-[51] — THE DETRIMENT TEST (Shamoon): [48]: 'the applicable law is in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL, and particularly in the judgment of Lord Hope... paras 33-35'. [50] verbatim: '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?' [51] verbatim: 'Although the test is framed by reference to "a reasonable worker", it is not a wholly objective test.' — claimant — NB 'not a high bar' is a fair paraphrase, NOT a quote; the actual closing line is 'It should not, therefore, be particularly difficult to establish a detriment for these purposes.'
• [49] — Detriment interpreted WIDELY: sourced to KHAN (Lord Mackay), cited WITHIN Shamoon — no need for physical or economic consequence — claimant — *** distinguish from the Shamoon test itself: the 'widely' point is KHAN's contribution, not Shamoon's. Our old record blended them. ***
• [62]-[65] — THE CAUSATION TEST: [64] verbatim: 'The "but for" test is clearly not applicable, setting the bar too low. But the "operative" or "effective" cause sets it too high... Lord Nicholls' formulation - whether the protected characteristic or protected act "had a significant influence on the outcome" - is the correct test. And "the reason why" is to be preferred to "causation".' Sourced to Nagarajan [63]; unified with s.13 via Bailey [65]-[66] — dual — *** CONSISTENT with our separately-verified KHAN record: Warburton [62] quotes Khan (Lord Nicholls [29]) expressly rejecting 'causation' as the frame for 'by reason that'. No conflict between the two verified records. ***
• [59], [76], [81] — The ET's error: cannot stand on either limb: [59]: the no-detriment finding 'cannot stand... reached on the basis of a misstatement of the applicable law'; [76]: failure to state the law correctly on causation; [81]: both limbs 'based on misstatements of the law... cannot stand'. The EAT declined to substitute its own fact-finding — framework — good template language for 'ET applied the wrong test' submissions.
• [83] — Remittal to a DIFFERENT ET: applying Sinclair Roche & Temperley v Heard [2004] IRLR 763 at [46]: 'The original ET consisted of an Employment Judge and two members. There may be difficulties in reconvening the original ET... I will therefore remit the case for rehearing by a different ET.' — framework — the remittal-composition authority; useful for remittal strategy.
• [84]-[103] — THE COSTS APPEAL (a separate matter): the ET had NO JURISDICTION under Rule 76(1)(b) ET Rules to award costs on an unsuccessful stay application — respondent — *** a DISTINCT holding in the same document. Flag the scope: a future user searching Warburton for costs-jurisdiction points would otherwise miss that this is the same case. ***
• [67]-[74] — The causation survey (supporting authorities): Aziz v Trinity Street Taxis [1989] 1 QB 463; Martin v Devonshires Solicitors [2011] ICR 352 EAT; Woodhouse v West North West Homes Leeds [2013] IRLR 773 — framework — useful 'what-tribunals-get-wrong' texture.

When relevant

Victimisation claims under EA2010 s.27 where detriment is disputed. The correct test for detriment in victimisation (following Shamoon). Causation analyses: whether the protected act had a 'significant influence' on the outcome. Cases where the respondent argues no detriment was suffered or the refusal was for neutral vetting/procedural reasons.