Warburton v Chief Constable of Northamptonshire Police

In brief

The EAT allowed Mr Warburton's appeal against a finding of no victimisation, holding that the employment tribunal had misstated the law on both limbs of EA 2010 s.27, and sent the claim to a different tribunal; it also allowed the Chief Constable's separate appeal on costs. The judgment, of 14 March 2022 (hearing 24 February 2022), decided two consolidated appeals on two separate legal questions. The liability appeal (EA-2020-000376-AT, Mr Warburton's) was allowed: the Watford tribunal misstated the law on both limbs of s.27, and the claim was remitted for rehearing by a different tribunal. The costs appeal (EA-2020-001077-AT, the Chief Constable's) was also allowed: the tribunal had no jurisdiction under Rule 76(1)(b) of the ET Rules to award costs on an unsuccessful stay application, and the award was set aside ([84]-[103]). That is a distinct holding from the victimisation ruling. On the facts, Mr Warburton applied to the respondent, Northamptonshire Police, on 3 November 2017. The protected act was his ongoing tribunal proceedings against a third force, Hertfordshire Constabulary, over an earlier failed application there ([3], [47]). His Northamptonshire vetting stalled, which was attributed variously to the Hertfordshire proceedings and to a fourth force, Avon and Somerset, failing to supply vetting information ([5], [21]). So he applied to one force while suing another over a separate earlier application, with a third force as the vetting bottleneck; he was not suing his own force, and he was not employed by any of them. The EAT set out a two-limb framework for s.27: detriment, applying Shamoon (Lord Hope) [48], [50]-[51]; and causation, applying the Nagarajan 'significant influence' test [62]-[65], the two tied together through Chief Constable of Greater Manchester v Bailey [2017] EWCA Civ 425 (Underhill LJ at [12]) at [65]-[66].

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.
• [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 — Warburton [62] quotes Khan (Lord Nicholls [29]) expressly rejecting 'causation' as the frame for 'by reason that'.
• [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.
• [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.