What is detriment?

“Detriment” is a legal term. It means unfair action by an Employer against an Employee during employment which falls short of an actual dismissal. In Ministry of Defence v Jeremiah [1980] the Court of Appeal considered the meaning of detriment in the context of discrimination. Brightman LJ said;” I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment”. Lord Justice Brandon said; “I do not regard the expression ‘subjecting…  to any other detriment’ as meaning anything more than ‘putting under a disadvantage”.

In Shamoun v Chief Constable RUC [2003] the Court said that the test is whether a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. Peake v Automotive Products [1977] held that detriment also includes financial or economic disadvantage.

The right not to be subjected to a detriment does not apply where the detriment is your dismissal.

Claiming detriment in the Employment Tribunal

If you suffer a detriment you can bring a claim in the Employment Tribunal under section 48 ERA 1996.

See – Legal tests that apply to detriment claims

You will have to prove to the Employment Tribunal that;

• you have suffered some detriment
• the detriment was caused by some act or deliberate failure to act on the part of your Employer, and
• your Employer’s act or omission was done on one of the prohibited grounds set out above in the grounds for bringing your tribunal claim

Time Limits for bringing a detriment claim

You must bring your claim within three months of the act or failure to act which you are complaining about. If you are complaining about a series of events, your time limit rans from the date of the last event (subject to ACAS Early Conciliation) – sections 48(3)(a) and 48(4A) ERA 1996

The Employment Tribunal has the power to extend the time limit where there is evidence that it was not reasonably practicable for you to file the claim in time (but this is quite rare so just make sure your claim is in time) – section 48(3)(b) ERA 1996

Remedies for detriment in the Employment Tribunal

The remedies available to you are laid out in section 49(1) ERA 1996, and must be reflected in your schedule of loss. The Employment Tribunal must make a declaration that you suffered detriment in your employment and may in addition award you compensation which takes account of the infringement you have complained about and any loss which can be attributed to your Employer’s act or failure to act – section 49(2) ERA 1996.

The compensation must include any expenses that you have reasonably incurred and the loss of any benefit which you would have received had it not been for your Employer’s actions – section 49(3) ERA 1996.

The Employment Tribunal can also make an award for injury to feelings.

Updated: 01/03/2020