Workplace Report February 2021

Law - Detriment

Detriment — the law

Basic legal rules

A detriment is unfair action (or a decision not to act) by an employer that falls short of dismissal. Examples include refusing training or withholding a reference. Workers (which includes employees) are protected from suffering a detriment because they assert certain statutory employment rights. Not all rights are covered. Important examples include: making a protected disclosure (whistleblowing); enforcing national minimum wage or working time rights; asking for flexible working; and engaging in the activities of an independent trade union at an appropriate time.

Someone who cannot claim unfair dismissal because they are not an employee, for example an agency worker, may be able to bring a detriment claim. The ET needs to be satisfied that the act of asserting the relevant statutory right was an important factor explaining the employer’s decision to treat them detrimentally.

Key developments

• Imposing new unfavourable contract terms is a “one-off” act, meaning that it triggers the start of the three-month claim deadline for a whistleblowing detriment claim (case 3);

• A disciplinary warning to a union rep for refusing to comply with a management instruction to remove a new email list was unlawful trade union detriment (case 4).