Detriment Claims – What are they?

If you have suffered a detriment at work, you may be able to claim against your employer in the employment tribunal.

A detriment at work is when an employee is treated in an unfair manner by the employer but that does not go as far as to dismiss the employee.

An example of this could be, not being given the chance for promotion or not being given access to the right training in order for the employee to be able to carry out their job correctly.

What is a detriment?

A detriment is when the employer treats you unfairly in the workplace, for example:

• if the employee is being denied training opportunities
• if the employee is being given more work than you are capable of or continually being given tasks which is mundane;
• if the employee is subjected to humiliating and demeaning comments – please not that if any of these comments are remotely discriminatory based on a protected characteristic, you may also be able to claim for discrimination under the Equality Act 2010;
• if the employer continually highlighting insignificant issues about the employees behaviour and conduct at work;
• if the employer refuses to take seriously or deal with in a proper way, grievances or disciplinary action.
• An employee is protected from suffering detriment in the workplace if they have raised issues in the workplace relating to asserting a statutory right, for instance the right to be paid the minimum wage or if they have made a protected disclosure (blown the whistle) at work.

If an employee is sacked and worked for the employer for long enough, you should make and unfair dismissal claim in the employment tribunal. If however if you do not have the length of service or you are an agency worker, you may be able to bring a detriment claim.

How do I make a detriment claim?

In order to make a detriment claim the employee must be able to do the following:

1. the employee with need to be able to prove that they made a protected disclosure or a protected employment right. Only specific employment rights are protected.
2. they must also prove that they suffered a detriment as a direct result of trying to assert or use an employment right.

Does an employee have to prove they have suffered financial loss as a result of the detriment?

The short answer is no. An employee is able to make a claim for compensation as a result of:

• Any financial losses as a direct result of the detriment that they have suffered.
• Any injury to feelings which may have been suffered as a result of the detriment. For example, if a person was bullied  or victimised by their boss after making a protected disclosure.

Proving that you suffered a detriment as a result of asserting a statutory right or making a protected disclosure

In order to make a claim for detriment, it is essential that the employee can prove they suffered detriment as a result of asserting a statutory right or making a protected disclosure. The employee must be able to show the tribunal that this is the case.

NB. Be aware that only specific employment rights apply when bringing a detriment claim.

The employee may be able to show that they have been treated detrimentally in the following ways:

• By showing that the employers attitude towards you changed directly after you made an assertion or a disclosure.

For instance, if a shift worker complained of poor and dangerous working conditions and then subsequently was not given any more shifts or duties were changed dramatically for the worse.

Or, for example, if and employee is treated so badly after making an assertion that they no longer feel they can work for the company and resign, then subsequently receive a bad reference from the ex-employer, preventing them from getting another job.

• If comments are made by the employer about why the employee is making such claims or why they are asserting their employment rights. This, however is often hard to prove. It is always recommended to make assertions or disclosures in writing and then following this up with a grievance if they are treated badly following the detriment.
• Proving that other colleagues were not treated the same as you when asserting the right. This would require statements for other employees stating as such.
• By asking the employer why they have decided to treat you badly following the assertion or disclosure. This should be done in writing in the form of a grievance.

What rights are protected employment rights?

There are only certain rights which are protected in employment law. The main ones to be aware of are as follows:

• health and safety issues;
• whistleblowing;
• the right to have statutory holidays;
• the right to have rest breaks;
• time off for study and training, if a young worker;
• parental and family leave;
• the right to be paid the minimum wage or national living wage;
• the right to not have pay unlawfully deducted;
• Sunday working;
• flexible working rights;

Financial loss as a result of suffering a detriment

An employee may be able to prove, that they have suffered a financial loss as a result of suffering a detriment, in the following ways:

• They are denied a promotion as a result of the detriment meaning they miss out on a salary increase;
• Being denied training, which in turn would result in not being able to advance their career with new jobs skills and therefore missing out on new opportunities;
• Being unable to apply to get new employment because the employer refuses to provide you with a reference or provides  a bad reference.

What compensation would an employee receive in a detriment claim

The tribunal would calculate the compensation based on:

1. the nature and seriousness of the detriment;
2. the potential loss of earnings to the employee;
3. any injury to feelings as a result of the detriment.

If an employee is making as detriment claim, they should also check whether or not they are able to make other claims in the tribunal.

For instance, if an employee has whistle-blown, they may be able to claim automatic unfair dismissal if they have been working for the employer for less that two years. Or potentially, unfair dismissal, if they have been working for longer than two years.

It is also worth noting that in such claims, the employee should check to see if they have been discriminated in a anyway, by the way they have been treated.