Can there be discrimination without any detriment?
Associate, Veale Wasbrough Vizards
The Employment Appeal Tribunal (EAT) has confirmed the test that there must be a detriment as well as less favourable treatment to establish unlawful discrimination.
In Singh v Cordant Security Ltd, Mr Singh ('S') was a security guard of Indian ethnic origin. His supervisor, who was white, reported that S smelt of alcohol at work. S was sent home whilst investigations took place but raised a grievance stating that his supervisor had used racially abusive language towards him. The disciplinary allegation against S was investigated but not upheld. His complaint of racial abuse was not investigated.
S brought proceedings to the employment tribunal (ET) for discrimination on the grounds of race. The ET found that the alleged use of racially abusive language had never happened but found that the failure to investigate S's complaint was less favourable treatment, and therefore discrimination on the grounds of race. The ET made a declaration of discrimination against the employer but no compensation was awarded. There was no injury to feelings as the allegations had been fabricated.
The employer appealed to the EAT.
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The EAT allowed the employer's appeal. The ET had failed to establish whether S had suffered any detriment, which is a necessary component of any finding of discrimination, in addition to less favourable treatment.
The EAT considered that there was no sense of grievance or injustice by the allegation not being investigated, and that it would be very difficult to establish a detriment where the allegation was completely false. The EAT therefore overturned the declaration of discrimination.
It is reassuring for employers that the EAT confirmed in this case that less favourable treatment on its own was not sufficient for a successful discrimination claim, and that a claimant must establish that he or she has suffered a detriment as well. The EAT made it clear however that the decision in this case would have been different, had the allegations made by S not been entirely fabricated.
As the truth of allegations cannot be known until they are investigated, employers should always take steps to investigate any grievance or allegation from an employee, even if they are raised during disciplinary (or other) proceedings. This is particularly important where any such allegations relate to discrimination.