Less favourable treatment on its own cannot amount to discrimination

Section 39(2) of the Equality Act 2010 states that an employer cannot discriminate against an employee in any aspect of their employment. This includes terms and conditions, benefits, opportunities for promotion, reasons for dismissal or by subjecting them to any detriment due to a protected characteristic.

The Employment Appeal Tribunal (EAT) has now provided some helpful guidance on the correct approach to be taken where the employee has suffered less favourable treatment but no detriment.  The EAT held in Singh v Cordant Security Ltd that a failure to investigate a groundless grievance cannot amount to discrimination where the employee in question has not suffered a detriment.

Background

 
Mr Singh (a security guard of Indian ethnic origin) was employed by Cordant Security Ltd. On Friday, 8 November 2013, his supervisor was informed that Mr Singh smelt of alcohol.

On Monday, 11 November 2013, Mr Singh gave a statement about why he had been unfit to work on the previous Friday. Mr Singh then reported that his supervisor had used racially abusive language towards him.

The allegation related to alcohol consumption was investigated and a disciplinary meeting was held on 13 January 2014. However, the employer failed to investigate the allegations of race discrimination. At that hearing, the counter allegation of racially abusive language was repeated but again no action was taken.

Mr Singh instituted proceedings in the Employment Tribunal alleging that the use of racially abusive language amounted to direct discrimination on grounds of race.

First Instance

The Employment Tribunal made a finding of fact that his supervisor had not used racially abusive language towards him and “that the Claimant must have invented them after he had been sent home because he was concerned that he might face disciplinary action.”

Despite this, the Tribunal concluded that the failure to investigate the Claimant’s complaint of racial abuse was less favourable treatment on the grounds of race. The Tribunal did not refer to the question of whether Mr Singh had suffered a detriment, nor did it identify any such detriment.

At the Remedies Hearing, the evidence suggested that the Claimant’s ill health and injury to feelings were associated with the allegation that he smelt of alcohol and that he was considered a “drunkard” both in work and in his community. It concluded that the appropriate remedy was a declaration. Cordant Security Ltd appealed to the EAT.

Employment Appeal Tribunal

The EAT confirmed that there is no contravention of section 39(2)(d) unless both discrimination (less favourable treatment on grounds of a protected characteristic) and detriment are present. The EAT found that, had Mr Singh’s complaint been investigated it would have been found to be untrue therefore no substantive detriment could be shown. The EAT overturned the declaration of discrimination.

Comment

Where a complaint is knowingly fabricated, it will be difficult for a Claimant to establish that he or she has suffered a detriment. It is unlikely that the Claimant will be successful in bringing a claim under s.39(2)(d) given that they will not have suffered any detriment if the allegation is false. However, whether or not an allegation of discrimination is true or false can only be established after an investigation has been carried out. Employers need to be mindful of the risks associated with not investigating any allegation which falls under the Equality Act 2010 given the potential consequences of a successful claim of discrimination.

For advice on how to deal with allegations of discrimination in the workplace, please contact a member of the Employment Team at Devonshires Solicitors LLP.

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