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What is the legal test for detriment under section 146 of the Trade Union & Labour Relations (Consolidation) Act 1992?

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Published on LexisPSL on 20/01/2020

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  • What is the legal test for detriment under section 146 of the Trade Union & Labour Relations (Consolidation) Act 1992?

What is the legal test for detriment under section 146 of the Trade Union & Labour Relations (Consolidation) Act 1992?

‘Detriment’ is a concept found in a variety of different areas of employment law, in particular the various protections against being subjected to a detriment for a number of unlawful reasons found in sections 43M to 47G of the Employment Rights Act 1996 (ERA 1996).

Broadly speaking, what may amount to ‘detriment’ is not defined in express statutory words in any of these contexts.

However, in all these contexts, this much is clear from the case law about detriment:

A worker is subjected to a detriment if they are ‘put at a disadvantage’:

  1. 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

  2. this would include financial or economic disadvantage

  3. it may also include denying the employee a benefit or advantage (eg the opportunity for promotion or to work overtime, or non-contractual benefits), where that benefit or advantage is accorded to others and where the employee themselves might reasonably have expected it to be accorded to them too

Furthermore, in addition to showing that the worker suffered some detriment or disadvantage, it is also necessary to show that their employer 'subjected' them to such detriment or disadvantage. This means that the

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