A finding of race discrimination in the UK requires the employee to show both (a) that he was less favourably treated on grounds of race; and (b) that he suffered a detriment. The need to establish (b) separately is often overlooked, in that less favourable treatment is, by itself, pretty invariably a detriment. However, the Employment Appeal Tribunal in Cordant Security -v- Singh has this week ruled on whether less favourable treatment is necessarily also a detriment.
You may think that this sounds all a bit academic, but in fact the case contains some useful pointers for employers in grievance and disciplinary matters, so read on.
In broad terms, the facts were these: Mr Singh’s supervisor (who was, and indeed still is, white) made an allegation that Mr Singh smelt of alcohol at work and so was guilty of serious misconduct. Singh in turn made allegations that the supervisor had made racist remarks towards him. The complaint against Singh was investigated, but no disciplinary action was ultimately taken. The complaint by Singh was broadly ignored. Cordant was unable to show a credible alternative reason for the difference in approach, and therefore the Employment Tribunal found that this was less favourable treatment on grounds of race, and hence discrimination. However, it also found as a fact that while the supervisor genuinely (though wrongly) believed that Singh had been drunk at work, Singh’s reciprocal allegations of racial abuse against the supervisor were wholly invented.
As a result, the Tribunal concluded that Singh could not reasonably claim any compensation for that discrimination. If his allegation had been investigated, it would have been found to be untrue. Moreover, it was hard to credit him with any legitimate injury to feelings arising from Cordant’s failure to investigate what he knew to be an entirely spurious complaint. Nonetheless, while Cordant had no compensation award made against it, it did come out of the proceedings saddled with a declaration that it was guilty of unlawful race discrimination.
Cordant appealed, primarily on the question of whether Singh had in fact been subjected to a detriment as required for a finding of discrimination. The EAT took little time to deal with the matter. Even though Cordant had not been able to show why it had treated the two complaints so differently, Singh had suffered no detriment – neither any financial loss nor any credible injury to feelings -from that less favourable treatment. Therefore, the declaration of discrimination against Cordant was set aside.
Lessons for employers
This sounds like a big plus – no discrimination in a failure to investigate an untrue grievance. But do be careful, since it is necessary to bear in mind the wide range of circumstances in which complaints can be made. These may turn out to be unsubstantiated even though they are genuinely believed in. Alternatively, complaints may be partially true or exaggerated out of anxiety without any dishonest or malicious intention. And at the Singh end of the spectrum, a grievance could be entirely and deliberately fabricated.
So Cordant was, in a sense, lucky – if Singh’s allegation had later turned out to be true in whole or any part, however small, or if it had been found to be completely untrue but the product of a genuine misunderstanding on his part (none of which Cordant knew, since of course it had not investigated the thing in the first place), the outcome would have been very different. This case is absolutely not a licence to ignore bits of complaints which you believe, or even know, to be false. There are always certain conclusions an employer can jump to when an allegation of discrimination first surfaces immediately after a disciplinary charge but acting on those assumptions by ignoring the complaint altogether could itself be found discriminatory very easily.
Cordant also reminds employers to make sure that complaints do not drop between the cracks. Singh’s manager told him to make the allegations the subject of a formal grievance if he wanted them looked at (even though he already had), but none of the other Cordant management who knew of the complaint did anything about it at all, seemingly as the product of inertia rather than any conscious decision. It was that which created the vacuum in Cordant’s reasoning which the Tribunal filled with race. Someone in management or HR needs to keep an eye on complaints of this sort and make sure that they are progressed at a reasonable rate or, if ignored, that there is a conscious reason why.