Detriment and discrimination
Labour & European Law Review Weekly Issue 449 09 December 2015
There are two elements of discrimination set out in the Equality Act - treating an employee less favourably on the ground of a protected characteristic and subjecting them to a detriment. In Cordant Security Ltd v Singh and anor, the Employment Appeal Tribunal (EAT) held that if the employee has not suffered a detriment then the employer could not be found to have discriminated against them.
Mr Singh, who is of Indian ethnic origin, worked as a security guard. His manager, Mr Stones, was told by another employee that Mr Singh smelled of alcohol and he was sent home. On his return to work Mr Singh complained that his manager had racially abused him.
The disciplinary allegation against Mr Singh was subsequently investigated and at a disciplinary hearing, Mr Singh repeated his allegations that Mr Stones had used racially abusive language towards him. The investigating manager told Mr Singh that no action would be taken in relation to his complaint unless he lodged a formal grievance. In the event, the disciplinary allegation against Mr Singh was not upheld. However, his complaints of racial abuse by his manager were not investigated.
Mr Singh then lodged a tribunal claim for discrimination and harassment, complaining about the racially abusive language and failure to investigate his complaints.
After hearing the evidence, the tribunal held that Mr Singh had made a false accusation of racial abuse after he had been sent home because he was concerned that he might face disciplinary action. There was therefore no direct discrimination or harassment.
However, it found that the failure to investigate Mr Singh’s complaint of racial abuse was less favourable treatment on the grounds of race because of the difference in the way that the two allegations of misconduct were handled. The allegation against Mr Singh was promptly investigated and led to disciplinary proceedings; while the complaint against Mr Stone was completely ignored. It was unnecessary for his employer to require Mr Singh to lodge a formal grievance as he had already made a written complaint. The tribunal therefore upheld that aspect of his claim of race discrimination.
Although it declined to make an award as he had not suffered any injury to feelings (as the allegations were false), it granted a declaration that the company had directly discriminated against him by failing to investigate his allegation relating to the use of racially abusive language.
The company appealed on the basis that the tribunal had failed to consider whether or not Mr Singh had suffered a detriment.
The EAT confirmed that to succeed in a claim of discrimination in employment, the Equality Act requires two elements to be satisfied: first that the employee is treated less favourably on the ground of a protected characteristic and second that the employee has been subjected to a detriment as a result of that less favourable treatment.
In the present case, on the facts found by the tribunal, Mr Singh could not show any detriment and did not suffer any injury to feelings as a result of the failure to investigate the fabricated complaint.
In those circumstances, Mr Singh could not be said to have suffered any sense of justified grievance or injustice as a result of the less favourable treatment. The tribunal was therefore wrong to grant a declaration that the company had directly discriminated against him when it failed to investigate his allegation as one of the necessary elements required by the law (detriment) was not present.
The EAT allowed the appeal and set aside the declaration.