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No discrimination over failure to investigate race complaint

Posted by TonyBrownEmploymentSolicitor on November 20, 2015

Can the failure to investigate a false and invented grievance amount to discrimination?Not on the facts of the next case.

The Claimant, who was of Indian ethnic origin, was accused of coming into work smelling of alcohol and was sent home by his supervisor. When the Claimant returned to work the following day, he made an allegation that his supervisor, who was white, had used racially abusive language towards him. He was informed that until he made what was described as an official grievance no action would be taken. The allegation about the Claimant drinking alcohol was investigated and it was decided that no further action should be taken.

The Claimant instituted proceedings in the employment tribunal alleging that the use of racially abusive language towards him by his supervisor amounted to direct discrimination on grounds of race, and harassment.

The ET concluded that the Claimant’s allegation against his supervisor was false and that the Claimant had invented the allegation after he was sent home because thought he would face disciplinary action for coming into work smelling of alcohol.

Despite this, the ET upheld the Claimant’s claim of race discrimination. It reached this decision on the basis that, although the employer had investigated the allegation that the Claimant smelled of drink, it did not investigate the Claimant’s allegation, and this constituted less favourable treatment of the Claimant on grounds of race. However, as the Claimant had not suffered any injury to feelings as a result of the failure to investigate his [groundless] allegation, the tribunal declined to award him any compensation. It did, however, grant a declaration that the employer had racially discriminated the Claimant.

The employer appealed.

The EAT allowed the appeal. A claim of discrimination under the Equality Act 2010 requires that there be (1) discrimination, that is, less favourable treatment on grounds of a protected characteristic, such as race, and (2) detriment to the employee. In the present case, on the facts as found by the tribunal, there was no detriment suffered by the Claimant in the employer’s failure to investigate his groundless allegation and therefore it followed that there was no contravention of the Equality Act.

Therefore the ET was wrong to grant a declaration, and it was set aside.

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