Cordant Security Ltd v Singh & Anor (Race Discrimination : Direct)

A contravention of section 39(2)(d) of the Equality Act 2010 requires both direct discrimination and a detriment. Less favourable treatment because of a protected characteristic alone does not establish that statutory cause of action.

A detriment exists where a reasonable worker would or might regard the treatment as disadvantageous in all the circumstances. Distress, a real sense of injustice, or injury to feelings may suffice. An unjustified sense of grievance does not.

Although less favourable treatment will usually support an inference of detriment, that inference may be rebutted. Where a complaint was knowingly and wholly fabricated, the absence of investigation may cause neither substantive disadvantage nor a real sense of grievance. Whether detriment exists remains a fact-sensitive question for the tribunal.

The employer appealed from an Employment Tribunal decision sent to the parties on 30 September 2014. The Tribunal had found that the employer directly discriminated against its Indian security guard by failing to investigate his written allegation that a white supervisor had used racially abusive language.

The Tribunal found that the allegation of racial abuse was wholly fabricated. At a remedies hearing it found that the failure to investigate caused no injury to feelings or depression, declined compensation, but made a declaration of direct discrimination.

The central issue was whether the declaration could stand without a finding that the employee had suffered a detriment for the purposes of section 39(2)(d) of the Equality Act 2010. The employer also challenged the Tribunal’s approach to less favourable treatment and comparison.

1. Appeal allowed. Section 39(2)(d) of the Equality Act 2010 requires two distinct elements: discrimination, namely less favourable treatment because of a protected characteristic, and detriment. The Employment Tribunal’s jurisdiction and power to grant a declaration arise only upon a contravention of Part 5, not upon a finding of discrimination in the abstract.

2. The proper detriment inquiry is whether a reasonable worker would or might regard the treatment, in all the circumstances, as disadvantageous. Physical or economic loss is unnecessary. A genuine sense of injustice or injury to feelings may be a detriment, but an unjustified sense of grievance cannot be.

3. Less favourable discriminatory treatment will ordinarily permit an inference of detriment. That inference is nevertheless rebuttable. Here the complaint which had not been investigated was knowingly fabricated. Investigation could have produced no substantive benefit because it would have established that the complaint was untrue. The Tribunal had also found that the failure to investigate caused neither injury to feelings nor a sense of grievance or injustice.

4. Accordingly, detriment was absent and there was no contravention of section 39(2)(d). The declaration was set aside. Remittal would serve no purpose because the only conclusion on the facts found was that there had been no contravention of Part 5.

5. The Tribunal had, however, correctly found facts capable of shifting the burden on less favourable treatment. It was entitled to regard the prompt investigation of one serious misconduct allegation and the complete inaction on the other as materially similar circumstances. Those conclusions did not affect the dispositive absence of detriment.

• Employment Appeal Tribunal: Appeal allowed. The declaration that the employer had directly discriminated was set aside.
• Employment Tribunal: Decision sent to the parties on 30 September 2014. It found less favourable treatment because of race in the failure to investigate, found no injury to feelings at the remedies hearing, and made a declaration.