UK: Ignorance Is Bliss?

Last Updated: 16 January 2001

By Section 4(2)(c) Race Relations Act 1976 it is unlawful for a person to discriminate against another on racial grounds by subjecting that other person to a "detriment". In London Borough of Ealing –v- Garry, reported this month, the Employment Appeal Tribunal had to consider the meaning of the word "detriment" and in particular whether it was possible to argue that a person had been subjected to a detriment by actions of which he/she was unaware.

Ms Garry, a Nigerian, was employed by Ealing as Manager of a housing benefits team. In 1996 her Manager discovered that she had been investigated for housing benefit fraud during her previous employment with another London Borough. An investigation into Ms Garry's activities began and in March 1997 the investigator concluded that Ms Garry had made a fraudulent incentive grant application.

Ms Garry became aware of the investigation only in early May 1997. A report to Senior Management followed but in August of that year a Director of the Borough concluded that there was insufficient evidence to enable the matter to be pursued. However, the Director did not tell either Ms Garry or the investigator of this conclusion, with the consequence that the investigation continued. It was not until Ms Garry chased the matter in July 1998, nearly a year later, that she was told that no further action would be taken.

Ms Garry claimed that she had suffered a detriment on the grounds of her race. The EAT accepted that the detailed and open-ended nature of the investigation was a product of her race, but was it to her detriment? On the basis of earlier authorities the EAT concluded that if she was to suffer a detriment Ms Garry had to be "disadvantaged" in her employment. There was no basis for a finding, given her lack of awareness of the situation, that she had been caused any disadvantage. This was therefore a rare example of an employee being found to have been unfavourably treated on racial grounds and yet not as a matter of law being discriminated against.

However, though an employer might escape a discrimination claim on technical grounds as a result of the employee's lack of knowledge, that is not an argument for keeping staff in the dark about investigations and complaints etc. It is entirely possible that the covert conduct of an investigation, whether ultimately finding fault or not, could amount to a breach of trust and confidence and hence to a constructive dismissal claim. Ms Garry did not resign and so had no such claim – if she had quit on discovering the situation in July 1998 she would almost certainly have succeeded. Subjecting her to less favourable treatment on racial grounds would clearly have been a fundamental breach of contract by Ealing.

By way of example, the case of TSB Bank –v- Harris earlier this year concerned a job reference given on Ms Harris by the TSB while she was still employed there. The reference noted that Ms Harris had been the subject of 17 separate complaints. Of these, she had only been told about 2. The EAT found that keeping Ms Harris in ignorance of the remainder (but nonetheless mentioning them in the reference) was a repudiatory breach of contract with the consequence that her constructive dismissal claim succeeded. Had she been notified of them, it would not have done so.

Overall, the message to employers would seem to be that employees should be involved from an early stage in the investigation of complaints made against them. Only where there is a concern that employees notified of an investigation may be able to take pre-emptive steps to obscure or destroy evidence etc., would it be politic to pursue the investigation without involving them.

Stop Press

The Department of Trade and Industry has formally announced proposed changes to Employment Tribunal powers expected to come into force in Spring 2001. These include the increase of the costs limit from £500 to £10,000 for frivolous and vexatious claims; the ability to strike out cases which have no real prospect of success, and an increase of the deposit amount required for weak cases from £150 to £500.

Scotland is expected to make legal aid available for bringing claims in Employment Tribunals with effect from 15th January 2001. It remains to be seen whether England and Wales will follow suit.

The Equal Treatment Framework Directive 2000 has now been published. The UK must introduce legislation to prohibit discrimination on the grounds of religion, belief, or sexual orientation by 2nd December 2003, followed by similar legislation relating to disability and age by 2nd December 2006.

The Government document entitled "Work and Parents: Competitiveness and Choice" has been issued and includes proposals for paid paternity leave for fathers, lengthening paid maternity leave to 6 months, extending unpaid maternity leave, allowing adoptive parents to take similar paid leave and increasing the amount of parental leave to parents of disabled children.

The information and opinions contained in this publication are provided by national law firm Hammond Suddards Edge. They should not be applied to any particular set of facts without seeking appropriate legal or other professional advice.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.