Mr D Warburton v The Chief Constable of Northamptonshire Police
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Griffiths |
| Neutral Citation | [2022] EAT 42 |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 15 March 2022 |
Judgment approved by the court for handing down D Warburton v Chief Constable of Northamptonshire Police
Page 1 [2022] EAT 42
© EAT 2022
Neutral Citation Number: [2022] EAT 42
Case No: EA-2020-000376-AT
EA-2020-001077-AT
EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 14 March 2022
Before :
THE HONOURABLE MR JUSTICE GRIFFITHS
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Between :
EA-2020-000376-AT
Mr D Warburton
Appellant
- and -
The Chief Constable of Northamptonshire Police
Respondent
EA-2020-001077-AT
The Chief Constable of Northamptonshire Police
Appellant
- and -
Mr D Warburton
Respondent
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Mr S Keen (instructed by Berry Smith LLP) for the Claimant
Mr A Roberts (instructed by East Midlands Police Legal Services) for the Respondent
Hearing date: 24 February 2022
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Judgment
Judgment approved by the court D Warburton v Chief Constable of Northamptonshire Police
Page 2 [2022] EAT 42
© EAT 2022
SUMMARY
Whistleblowing, Protected Disclosures & 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
Judgment approved by the court D Warburton v Chief Constable of Northamptonshire Police
Page 3 [2022] EAT 42
© EAT 2022
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.
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The Chief Constable of Northamptonshire Police v Mr D Warburton
...v Chief Constable of Northamptonshire Police Judgment approved by the court for handing down Neutral Citation Number: [2022] EAT 42 Case No: EA-2020-000376 -AT EMPLOYMENT APPEAL TRIBUNAL Royal Courts of Justice Strand, London, WC2A 2LL Date: 14 March 2022 Before : THE HONOURABLE ......