Thread by @JasonBraier

1/ Warburton v Northants Police: a victimisation case offering a useful reminder of the Shamoon test on detriment & the authorities on the reason why under s.27, as well as noting that costs can't be awarded under r.76(1)(b) for refusing a stay.
bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ W, a police officer, applied for a police role with Northants. A few months earlier, he'd been accepted & then rejected for a police officer role at Herts. He commenced ET proceedings in respect of that rejection, alleging disability discrimination.

3/ During the Northants appl'n process, W made the force aware of the situation with Herts, including the claim & 24 complaints raised against Herts staff & officers. W completed Northants' vetting form, listing some complaints against him, traffic offences & crim damage arrest.

4/ W was then interviewed & assessed & given a conditional offer before being rejected. The rejection related to outstanding complaints from other forces, & a note said he could apply again once these complaints were settled.

5/ On rejection, W asked for reasons, noting his discrim claim against Herts, & accusing Northants of victimisation. They responded that the vetting processes allowed for review of the decision & then that it was usual practice to pause vetting when there were ongoing proceedings

6/ The DS in charge of vetting inquired with other forces re ongoing proceedings, found 1 had never been completed & another force declined to provide info given that W previously complained when they gave out his info. The DS told W he couldn't proceed until he had the info.

7/ W brought a victimisation claim against Northants for rejecting his application. At trial, the ET cited s.27 EqA but then proceeded erroneously to quote the direct discrimination rather than victimisation test.

8/ The ET had found that given W's application had not been permanently rejected but merely stalled whilst awaiting the information from another force, W hadn't suffered a detriment nor was any detriment because of the protected act (rather than because of the need for info)

9/ The EAT noted the Shamoon test on detriment & the generous width of its interpretation, including that its emphasis on the reasonable worker isn't wholly objective but points to the possibility of the reasonable worker & the ET forming different views on detriment.

10/ The EAT held the ET's reasoning somewhat confusing, but that it had erred in stating and applying the law on detriment. Thus the EAT allowed an appeal on that question. The EAT next moved on to the question of causation.

11/ The EAT deprecated the ET's use of "causation", preferring "the reason why" in light of Lord Nicholls in Khan, & making clear the ET erred in speaking of operative/effective cause rather than looking at whether the protected act had a significant influence on the outcome.

12/ The EAT then took a useful trip (paras 67-74) through some of the key case law on separating the protected act from the reason why the claimant was subjected to the detriment: Aziz, Khan, Martin v Devonshires, Page, Woodhouse. The ET's reasoning on this point was insufficient

13/ The EAT dealt finally with a cross-appeal on costs. The ET had rejected W's application for costs under r.76(1)(a) on grounds that the police acted vexatiously etc but allowed one under r76(1)(b) re the response having no reasonable prospects of success.

14/ However the order wasn't in relation to the prospects of success on the response (it'd be absurd if it was given that the respondents won) but in respect of the prospects of a stay application the respondents made.

15/ Unsurprisingly the EAT held the ET had wrongly applied the rules. R.76(1)(b) has no relevance to a failed stay application. 76(1)(a) applies to conduct or action during proceedings whereas (b) applies to the underlying merits of the parties' cases.

16/ Nothing in HHJ Tayler's recent decisions in Opalkova or Queensgate changed that position. There, the EAT clearly focused on matters conferring jurisdiction on the ET to grant substantive relief. An application for a stay is of a completely different character.