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Employment tribunals - legal tests that apply to detriment claims

This advice applies to Scotland

A detriment is when you’re treated unfairly by your employer for certain reasons. For example, it would be a detriment if your employer refused you access to training or to promote you because you had questioned if you were being paid minimum wage. If you have suffered a detriment, you might be able to make a claim to a tribunal but it can be difficult to prove a detriment claim.

If you’re an employee and the detriment is that you’ve lost your job, you should claim unfair dismissal

If you’re not an employee you might be able to make a claim for detriment instead.

You can check if you’re an employee or a worker if you’re not sure. 

You should also check if you’ve been discriminated against

You should talk to an adviser as soon as you can. This is because you need to make a claim to an employment tribunal within 3 months minus 1 day of the thing you’re claiming about.

You should have tried to resolve the issue with your employer before you apply to a tribunal.

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 harder 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, your employer shouldn't pick on you because you tried to assert your legal right to holiday pay, or raised an issue of public concern at work.

Do you have to prove 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 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. You’ll also need to show your employer treated you this way deliberately.

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

Example

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.

If you have suffered a financial loss as a result of the detriment

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.

Which employment rights are covered?

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:

  • whistleblowing
  • rights to statutory holidays and rest breaks at work
  • national minimum wage
  • taking part in trade union activities
  • health and safety

If you’re an employee you have more rights, including:

  • young employees' right to time off for study or training
  • family leave
  • flexible working

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 both:

  • you did something to assert a protected employment right - for example, you joined a trade union

  • the detriment you suffered was because you tried to assert that right

Next steps

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