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An employee must establish detriment to bring a successful claim

The Employment Appeal Tribunal (“EAT”) has confirmed there cannot be a successful discrimination claim where the claimant cannot establish he/she has suffered a detriment. Howes Percival comments on latest Employment Appeal Tribunal ruling. 

“This decision is a welcome affirmation that an employee must have suffered detriment to be able to bring a successful discrimination claim. However, an employer would be unwise to rely on this decision to ignore a grievance which it believes to be false and is being made simply to delay disciplinary proceedings.”Employers should take comfort from the EAT's affirmation of the fact that a claimant must have suffered detriment for a discrimination claim to be successful. A finding that the claimant was treated less favourably because of his race was not enough on its own. However, this case also demonstrates that, regardless any on-going disciplinary process, an employer should take steps to deal with any grievance (particularly where allegations of discrimination are made) even where it is clearly a direct response to disciplinary proceedings. Failure to do so may result in a discrimination claim.

In the case of Cordant Security Ltd v Singh & Anor, Mr Singh (who was of Indian ethnic origin) worked as a security guard for Cordant Security Ltd (“Cordant“). On Friday 8 November 2013, Mr Stones, Mr Singh's supervisor, was informed by another employee that Mr Singh smelled of alcohol. Mr Stone informed his manager of this and Mr Singh was sent home.Mr Singh attended work on the following Monday, and was asked to give a statement as to why he had been unfit for work on the previous Friday. Mr Singh did not do so, but instead handed over three copies of a letter alleging that Mr Stones had used racially abusive language towards him. Mr Stones advised two management personnel of these accusations.

The allegation of misconduct regarding Mr Singh's alleged alcohol consumption was investigated, and a disciplinary meeting was held. At this meeting, however, the misconduct allegation was not upheld and was investigated no further. Throughout the meeting, Mr Singh repeated the allegation that Mr Stones had used racially abusive language towards him, but Mr Singh was informed he would have to raise an official grievance before Cordant would investigate the allegations any further.Mr Singh later brought a claim of direct discrimination in the ET, on the grounds that he had been directly discriminated against. He claimed that he had been subjected to less favourable treatment on the grounds of his race, because Cordant had not investigated his allegations against Mr Stones but had fully investigated the claims of misconduct against him. Mr Singh claimed that he had been treated less favourably than Mr Stones, who was an appropriate comparator in the situation. The ET, despite finding the allegations of racial abuse to be entirely untrue, agreed with Mr Singh, and made a finding of direct discrimination.

At the remedies hearing, however, the ET found that whilst Mr Singh was discriminated against, he had not suffered any detriment because he had completely fabricated the allegations of racially abusive language. As such, no compensatory award was made in favour of Mr Singh and the ET simply made a declaration of discrimination against Cordant.Cordant appealed the ET's decision. The EAT did agree with the ET and stated that Mr Singh had been treated less favourably because of his race. They also noted that there was no adequate explanation as to why those who were aware of Mr Singh's allegations had not taken steps to investigate it, despite Mr Singh not making a formal complaint. The EAT went on to confirm, however, that a necessary element of a successful discrimination claim is that the claimant has suffered detriment. As such, because Mr Singh had suffered no detriment as a result of the discrimination, Cordant's appeal was successful and the declaration of discrimination was overturned.

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