Yes, advises Employment Lawyer, Paula Stuart, following the recent Employment Appeal Tribunal (EAT) decision in Cordant Security Ltd v (1) Singh (debarred) (2) Stones (UKEAT/0144/15/LA)
In this case the Claimant, who was of Indian ethnic origin, was employed by the Respondent as a security guard. An allegation was made that he smelt of alcohol so was sent home pending an investigation. The Claimant then alleged that his supervisor, who was white, had racially abused him. The allegation was false but the Respondent did not investigate this complaint.
The Tribunal found that there had been discrimination as the failure to investigate constituted less favourable treatment on the grounds of race. The Tribunal failed to consider the question of whether the Claimant had suffered a detriment but found that the Claimant had not suffered any injury to feelings so did not award him any compensation but instead made a declaration.
The Respondent appealed to the EAT who allowed the appeal and held that in a claim under Section 39(2)(d) of the Equality Act 2010 both the elements of discrimination (less favourable treatment on the grounds of a protected characteristic and detriment) have to be present in order to succeed with a claim.
In the vast majority of cases where there has been less favourable treatment on grounds of a protected characteristic there will also be some kind of detriment. However, this judgment demonstrates that in rare cases it is possible for there to be less favourable treatment but no detriment and in these circumstances the tribunal cannot make a finding or declaration in the claimant’s favour.