February 16, 2016

Racial Discrimination – Detriment

The facts were these. The Claimant was an Indian security guard who was sent home by his supervisor for allegedly smelling of alcohol. The employer investigated this allegation, during the course of which the employee claimed that his white supervisor used racially abusive language towards him. The employer did not investigate this allegation. The Claimant’s allegation of detrimental treatment was that the allegation against him, as an Indian, of having been drinking was investigated by the employer, but his own allegation against a white employee was not, and as a result he had been subjected to a detriment. There was no evidence that he had suffered any injury to feelings as a result of the failure to investigate, however.

The EAT has now allowed the employer’s appeal. The reasoning was that as, the complaint was entirely made up, the Claimant could not have suffered any detriment by a failure to investigate. It held that there is no breach of the relevant section in the Equality Act unless both elements of discrimination, the less favourable treatment on the grounds of a protected characteristic, and detriment, are present. It held that, since the allegation was made up, if it had been investigated it would not have been substantiated because there was no truth in it. Therefore one of the necessary elements for a finding of direct race discrimination – detriment - was absent.

It appears that the EAT is almost adopting a Polkey style argument: whether investigating would have made any difference to the outcome. However in Polkey the issue goes to that of remedy whereas in this case the issue went to that of liability. Interestingly the Claimant was debarred from appearing in the Employment Tribunal (no idea what he did to deserve this) and the Tribunal did make a finding that, on the grounds of his race, the employer did not investigate the allegation of racially abusive language. It suggested that public policy would dictate that an employer could not avoid a finding of race discrimination just because the allegation was untrue.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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