Ignorance Is Bliss?

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.

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.