Employment tribunals - legal tests that apply to detriment claims
A detriment is unfair action taken by an employer against an employee during employment but does not go as far as dismissing the employee. Examples of a detriment include refusing you access to training or refusing to promote you because, for example, you belong to a trade union. If you have suffered a detriment, you may be able to make a claim to a tribunal but it can be difficult to prove a detriment claim.
What is a detriment?
Detriment is some treatment by your employer that is demeaning or detrimental. It can include:
- denial of training opportunities
- being given more onerous or mundane work
- demeaning or humiliating comments being made. If the comments are made based on age, pregnancy, sex, sexual orientation, religion, race, transgender or disability, this may also be discrimination
- insignificant issues about conduct being unduly highlighted by the employer
- the way in which grievances and disciplinary issues are handled so the employer is not taking them seriously or dealing them with a proper manner
- withholding certain employee terms such as a reference.
Workers are protected from suffering a detriment because they have done something where they are protected by law, for example, they should not be picked on by their employer because they have tried to assert their legal right to holiday pay, or they have blown the whistle on an issue of public concern at work.
If the detriment is that you have lost your job you should claim unfair dismissal provided you are an employee and you have worked for long enough. If you cannot claim unfair dismissal because, for example, you are not an employee but an agency worker, you may be able to make a claim for detriment instead.
What will you need to show to make a claim for a detriment?
To make a claim for detriment to a tribunal, you will need to show:
- that you did something to assert a protected employment right. Only certain employment rights are protected in this way
- the detriment you suffered from your employer was as a result of your trying to assert an employment right, or using an employment right.
Do you have to prove that you have suffered a financial loss to be able to claim a detriment?
You do not have to show that you have lost out financially as a result of the detriment in order to make a claim. You can make a claim for compensation for:
- any financial losses you have suffered a loss as a result of the detriment
- injury to your feelings which you have suffered because of the detriment. This would apply if the detriment was, for example, being bullied by your manager.
Showing that the detriment you have suffered has been caused by you trying to assert a statutory right or use a statutory right
It can be difficult to show that your trying to assert an employment right or use an employment right is the cause of the detrimental treatment. However, you must be able to show this to be able to make a claim to a tribunal. Only certain statutory rights are covered. You may be able to show trying to assert the right caused the detriment by:
- showing that the timing of your employer's poor behaviour immediately followed your assertion of your employment right. So if, for example, you had complained about not being given adequate rest breaks at work, and very soon afterwards your employer changed your job duties so you were not given shifts which paid any overtime, this would suggest there is a link between the two. However, your employer may be able to argue they had a completely different reason for changing your shifts which had nothing to do with your complaint
- verbal comments from your employer about why you are asking for the right or complaining about your exercising the right
- showing that other colleagues who were not trying to use the same employment right as you did not suffer the same detriment. You will need to identify which colleagues you can compare yourself to
- asking the person who is subjecting you to the detriment why they have behaved as they have. They may have an explanation which has nothing to do with your trying to assert an employment right, or you may get more information about their reasons for their behaviour.
A bus driver was denied the chance to work overtime because he had refused to opt out of working for only 48 hours a week. He argued that this denial of the chance to work overtime was an unlawful detriment and he had lost money as a result. His employer argued that it was reasonable to prevent him from working overtime because it had to avoid breaking the working time regulations and had to make sure that the 48 hour working week was complied with. The tribunal decided that the real reason the worker was not allowed to work overtime was because he had refused to sign the opt out.
You may be able to show that you have suffered a financial loss as a result of the detriment. This could be that:
- you have been denied a promotion and have therefore lost out on an increase in pay
- you have been denied training and have therefore lost out on the opportunity to get a better-paid job or an increase in pay to reflect your new skills
- you have not been able to apply for another job because your employer refuses to give you a reference.
Compensation from a tribunal
If you win a detriment claim at a tribunal, the tribunal will award you compensation taking into account the nature of the detriment, any injury to your feelings and how much you have lost out as a result of it.
Other claims if you have suffered detriment
If you have been dismissed, and have been dismissed for certain reasons, such as whistleblowing, you may be able to claim automatic unfair dismissal without having to have worked for your employer for any particular length of time. Otherwise, if you have worked for your employer for long enough, you may be able to claim unfair dismissal.
You should also check to see if there is any discrimination in the way you have been treated. You may need specialist help. You should seek help from an experienced adviser immediately, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB. This is because there is a time limit from the date of the breach within which you must make a claim.
To make a claim for detriment, you need to show that that you did something to assert a protected employment right. Only certain employment rights are protected in this way. The main ones are:
- health and safety
- Sunday working
- rights to statutory holidays and rest breaks at work
- young employees' right to time off for study or training
- family leave
- flexible working
- national minimum wage
- complaints about unlawful deductions from wages.
- Winning your claim for unfair dismissal - the legal tests
- Legal tests for discrimination claims and the time limits within which you must make a claim