Cordant Security Ltd v Singh UKEAT/0144/15; (2015) EMPLR 066
Employment Appeal Tribunal (EAT)
Lewis J, Baroness Drake of Shene and Mr R J Rivers CBE
A failure, because of race, to investigate an employee’s complaint is normally unlawful race discrimination - it is ‘less favourable treatment’ because of race, and it is unlawful because it amounts to a ‘detriment’ within s 39(2)(d) of the Equality Act 2010. That remains so even if the complaint turns out to be untrue: the failure to investigate may be a detrimental feeling of injustice or unfairness. But that does not apply if the employee deliberately fabricated the complaint.
S was sent home from work because it was thought he smelt of alcohol. S then complained that his manager had used racially abusive language towards him. The disciplinary procedure was used in respect of the allegation that S had been drinking alcohol but the allegation that the manager had used racially abusive language was not investigated.
The tribunal concluded the allegation of racist abuse had been fabricated in response to the disciplinary investigation into drinking alcohol. The tribunal nevertheless held that the failure to investigate S’s complaint was unlawful race discrimination; it did not award compensation because it concluded that the failure to investigate a fabricated complaint cannot have injured S’s feelings.
The EAT allowed the employer’s appeal. If there was no injury to feelings, there was no detriment. Therefore, although the treatment may have been less favourable because of race, it was not unlawful because there was no detriment.
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