Cordant Security Ltd (“Cordant”) provides security services at various retail and corporate sites in the UK. They had a contract with a third company to provide security guards (including Mr Singh) at a site in Bradford.
On Friday 8 November 2013, Mr Stones, Mr Singh’s supervisor, was informed by another employee that Mr Singh smelt of alcohol. Mr Stone subsequently informed his account manager and Mr Singh was sent home. The following Monday, Mr Singh attended work as usual. He was asked to give a statement as to why he had been unfit for work on the previous Friday. In response, Mr Singh, who is of Indian ethnic origin, handed over three copies of a letter alleging that Mr Stones had used racially abusive language against him. Mr Stones is of white ethnic origin. Mr Stones advised two fellow managers of these accusations including his own line manager.
An investigation into Mr Singh drinking alcohol took place and on 13 January 2014 a disciplinary meeting was held with a Mr Hussain. At the meeting, Mr Singh repeated the allegation that Mr Stones had used racially abusive language towards him. Once Mr Hussain sought advice from HR, he informed Mr Singh that he would have to raise an official grievance before any formal action could be taken. The misconduct allegation was dismissed.
Mr Singh lodged ET claims alleging direct discrimination on the grounds of race. He claimed that he had been subjected to less favourable treatment on the grounds of his race, because Cordant had not investigated his allegations of racial abuse against Mr Stones but had fully investigated the claims of misconduct against him. Notably, Mr Stones was an effective comparator and Cordant was unable to explain an adequate reason for the difference in treatment. Therefore the ET, despite finding the allegations of racial abuse to be entirely false having been invented out of concern of disciplinary action, agreed that discrimination had taken place as Cordant did not fully investigate Mr Singh’s allegations of racial abuse despite fully investigating the claims of misconduct against him. The ET commented that the suggestion of a formal grievance seemed capricious when Mr Singh had already submitted a written complaint and was not notified sooner that he was required to submit a formal grievance. The ET did not refer to whether Mr Singh had suffered a detriment nor identify any detriment.
No compensation was awarded although the ET did make a declaration that Cordant had directly discriminated against Mr Singh on the grounds of his race. The ET found that Mr Singh had not suffered injury to feelings as a result of Cordant’s failure to investigate the complaint, and in fact Mr Singh’s injured feelings and depression were in fact caused by the allegation that he smelt of alcohol and the following investigations.
Employment Appeal Tribunal
Cordant appealed, with one of their grounds being that the ET failed to consider if Mr Singh had suffered any detriment. This was bolstered by the fact that the ET had found Mr Singh had suffered no injury to feelings.
The EAT highlighted that for there to be direct discrimination in contravention of s39 (2)(d) Equality Act 2010 there must be a finding of both discrimination (that is, less favourable treatment on grounds of a protected characteristic) and detriment.
The EAT reasoned that as the ET had found that Mr Singh did not suffer any sense of grievance or injustice causing injury to feelings as a result of the fact that his allegation was not investigated, he had not suffered a detriment. In the absence of detriment, it could not follow that Cordant had directly discriminated against him.
Cordant’s appeal was subsequently allowed and the EAT set aside the ET’s declaration that Cordant had directly discriminated against Mr Singh.
There is no doubt that the findings made in this case are a useful precedent for all discrimination cases, serving as a reminder that in order to bring a successful discrimination claim employees need to not just show they have been subject to less favourable treatment but to also clearly establish that they have suffered a detriment. Whilst it is prudent for an employer to ensure that complaints, however trivial/false they may seem, are fully investigated, failure to investigate a fabricated grievance may not necessarily be a detriment. As the EAT recognised, an employee may be unable to establish that he had any legitimate sense of grievance (and therefore no detriment) where he has knowingly fabricated the complaint.