Garry v London Borough Of Ealing

For the purposes of racial discrimination in employment, a detriment is a disadvantage in the circumstances in which the employee has to work. A formal investigation conducted on racial grounds may constitute a detriment where it continues substantially longer than it otherwise would have done, even if the employee is temporarily unaware that it is continuing. The employer cannot rely on that lack of awareness where the treatment was objectively disadvantageous. An appellate tribunal may interfere with factual findings only where the employment tribunal had no reasonable basis for reaching them or acted perversely.

The appellant, an employee of the respondent local authority, was investigated for possible housing benefit fraud. The employment tribunal found that the decision to appoint a special investigator was racially motivated and that the investigation continued for about nine months longer than it otherwise would have done. It found that this constituted a detriment under section 4(2)(c) of the Race Relations Act 1976, although the failure to communicate the decision to take no disciplinary action was incompetence rather than racial discrimination.

The Employment Appeal Tribunal allowed the respondent’s appeal, holding that the continuation of the investigation, and the appellant’s lack of awareness of it, could not realistically amount to a detriment. The central issue before the Court of Appeal was whether that conclusion was legally and factually open on the employment tribunal’s findings.

1. Appeal allowed. The Employment Appeal Tribunal had wrongly reversed the employment tribunal’s finding that the appellant suffered a detriment.
2. Under section 1(1)(a) and section 4(2)(c) of the Race Relations Act 1976, the relevant question was whether the respondent, on racial grounds, treated the appellant less favourably by subjecting her to another detriment. The concept of detriment includes putting an employee at a disadvantage in the circumstances in which she thereafter has to work.
3. The employment tribunal was entitled to find that the racially motivated choice of a special investigator caused the investigation to continue for about nine months beyond the point at which it would otherwise have ended. The investigation concerned possible abuse of public funds and was known, or likely to have been known, to senior officers whose views were relevant to the appellant’s present and future employment. That continuing state of affairs was objectively disadvantageous.
4. The appellant’s lack of awareness did not prevent the treatment from being a detriment. The comparison with a confidential tax investigation was inappropriate because the present investigation was known within the employer’s organisation. The Employment Appeal Tribunal’s reliance on the idea that ignorance might be beneficial therefore failed.
5. The employment tribunal had also been entitled to treat the continuation of the investigation as sufficiently connected with the original discriminatory decision, notwithstanding the later non-discriminatory incompetence in failing to communicate the decision to end it. Its findings were not perverse and had a reasonable evidential basis.
6. The decision of the Employment Appeal Tribunal was remitted, if possible, to the same employment tribunal. The appellant was awarded her costs of the appeal.

• Employment Tribunal for London North: Found that the appellant was fairly dismissed but had suffered racial discrimination contrary to the Race Relations Act 1976.
• Employment Appeal Tribunal: Allowed the respondent’s appeal, concluding that no legally recognisable detriment had been established.
• Court of Appeal (Civil Division): Allowed the appellant’s appeal and remitted the matter to the employment tribunal, if possible the same tribunal.