Appeal No. UKEAT/0144/15/LA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

	At the Tribunal
	On 7 October 2015
	Judgment handed down on 27 October 2015

Before
THE HONOURABLE MR JUSTICE LEWIS
BARONESS DRAKE OF SHENE
MR R J RIVERS CBE

CORDANT SECURITY LIMITED	APPELLANT

(1) MR H SINGH (DEBARRED)
(2) MR A STONES	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR DAVID MASSARELLA
(of Counsel)
Instructed by:
Cordant Security Ltd
Chevron House
346 Long Lane
Hillingdon
Middlesex
UB10 9PF

For the First Respondent	First Respondent debarred from taking part in this appeal	
For the Second Respondent	Second Respondent not opposing the appeal	

SUMMARY
RACE DISCRIMINATION - Direct
RACE DISCRIMINATION - Detriment

Discrimination on grounds of race - Subjecting an employee to a detriment - Failure to investigate allegation of misconduct - Less favourable treatment on grounds of race - Allegation fabricated - Whether capable of amounting to a detriment

The Appellant company employed the First Respondent as a security guard.  He was of Indian ethnic origin.  An allegation was made that he smelt of alcohol at work.  He was sent home and the allegation investigated.  The First Respondent also made an allegation that his supervisor, who was white, had used racially abusive language towards him.  That allegation was false and had been fabricated by the First Respondent.  The Appellant, however, failed to investigate the complaint.  The Tribunal found that there had been discrimination as the failure to investigate the First Respondent’s allegation constituted less favourable treatment on grounds of race.  The Tribunal did not expressly consider the question of whether the Respondent had suffered any detriment.  At a Remedies Hearing, the Tribunal found that the Respondent had not suffered any injury to feelings as a result of the failure to investigate the complaint and declined to award him any compensation.  The Tribunal did, however, grant a declaration that Appellant had directly discriminated against the First Respondent by failing to investigate his allegation relating to the use of racially abusive language.

The Employment Appeal Tribunal held that a finding that there had been a breach of section 39(2)(d) of the Equality Act 2010 involved a finding that there had been both discrimination, in the sense of less favourable treatment on the grounds of a protected characteristic, and detriment to the employee concerned.  On the facts as found by the Tribunal, the First Respondent could not have suffered any detriment in the present case.  The complaint was entirely fabricated.  He did not suffer any substantive detriment as, if the complaint had been investigated, it would have been found to be untrue.  The Tribunal found that he did not have any sense of grievance or injustice arising out of the failure to investigate.  In those circumstances, there was no detriment.  The appeal was allowed and the declaration set aside.

THE HONOURABLE MR JUSTICE LEWIS

Introduction
1.	This is an appeal against a decision of an Employment Tribunal (Employment Judge Davies and Mr Dowse and Mr Eales) sent to the parties on 30 September 2014.  By that decision, the Tribunal upheld a claim that the Appellant, Cordant Security Limited, had discriminated against the First Respondent, Mr Singh, on the grounds of race by failing to investigate his allegation that he had been subjected to racially abusive language.  The Tribunal found, however, that the complaint of racial abuse was entirely fabricated.  At a Remedies Hearing, the Tribunal found that the First Respondent had not suffered any injury to feelings and did not order the payment of compensation.  The Tribunal instead granted a declaration that the Appellant had directly discriminated against the First Respondent by failing to investigate his allegation of racially abusive language.

2.	The principal challenge brought by the Appellant is that the Tribunal failed to consider whether or not the First Respondent had suffered any detriment as a result of the failure to investigate his complaint and, further, that any finding of detriment would be perverse given that given that the complaint was entirely fabricated and the Tribunal had found at the Remedies Hearing that the First Respondent had not suffered any injury to feelings.  In those circumstances, the Appellant contends that one of the necessary elements for a finding of discrimination, namely detriment, was not established and the declaration should not have been granted.  The Appellant also contends that the Tribunal erred in its approach to determining whether there had been less favourable treatment on grounds of race. 

The Facts
3.	The First Respondent, who was the Claimant in the Employment Tribunal, is Mr H Singh who is of Indian ethnic origin.  He was employed as a security guard by the Appellant which is a company providing security services at various retail and corporate sites throughout the United Kingdom.  The Appellant had a contract with a third company to provide security guards at a site in Bradford.  The First Respondent worked as a guard at that site and the Second Respondent, Mr Stones, was the supervisor.

4.	On Friday 8 November 2013, Mr Stones was informed by another employee that the First Respondent smelt of alcohol.  He reported the matter to the account manager.  The First Respondent was sent home.

5.	On Monday 11 November 2013, the First Respondent attended the site for work.  Mr Stones asked the First Respondent to give a statement about why he had been unfit to work on the previous Friday.  The First Respondent handed over three letters all containing the same written complaint.  The First Respondent alleged that Mr Stones had used racially abusive language towards him.  Mr Stones informed another manager, Mr Oldfield, about the complaint.  Mr Stones’ line manager, Mr Bevan, also knew of the complaint.

6.	The allegation of misconduct about the First Respondent drinking alcohol was investigated.  A disciplinary meeting was held with a Mr Hussain on 13 January 2014.  The First Respondent repeated at that hearing the allegation that Mr Stones had himself used racially abusive language.  Mr Hussain adjourned the hearing to take advice from the human resources department.  On returning, Mr Hussain informed the First Respondent that until he made what was described as an official grievance no action would be taken.  The disciplinary allegation against the First Respondent was not upheld.

7.	The First Respondent then instituted proceedings in the Employment Tribunal alleging, amongst other things, that the use of racially abusive language by Mr Stones towards him amounted to direct discrimination on grounds of race, and harassment.  The Tribunal found as a fact that Mr Stones had not used racially abusive language towards the First Respondent and concluded “after hearing evidence that that complaint was false”.  It found that:
“the circumstances in which the Claimant said that he was racially abused did not take place and the Tribunal found the racially abusive comments  were not made. Rather, it seemed to us that the Claimant must have invented them after he had been sent home because he was concerned that he might face disciplinary action”.

8.	In those circumstances, the Tribunal found that there was no direct discrimination or harassment arising out of those words.  The Tribunal did however, consider whether the fact that the Appellant failed to investigate the First Respondent’s allegation of misconduct against Mr Stones but had investigated the allegation of misconduct made by Mr Stones about the First Respondent, amounted to discrimination on the grounds of race.  The material findings of the Tribunal are as follows:
“5.22. The Tribunal considered whether the Claimant had proved facts from which it could conclude, in the absence of an adequate explanation, that this failure was less favourable treatment of the Claimant on the grounds of race.  We concluded that he had proved such facts.  In doing so, we reminded ourselves that the mere failure to investigate a complaint of discrimination is not, of itself, an act of discrimination.  A difference in treatment compared with an actual or hypothetical comparator is still required.  However, we were satisfied that the facts proved were such that we could conclude, in the absence of an adequate explanation, that there had been such a difference in treatment.  In particular:
5.22.1. The complaint made by the Claimant was one of particularly racially offensive comments.  Had those comments been made, that must have amounted to misconduct by Mr Stones.
5.22.2. Although Mr Stones knew the allegation to be false, nobody else at the First Respondent knew that.
5.22.3. It was clear that the complaint was drawn promptly to the attention of Mr Ofield, Mr Bevan and the HR department.  It came to Mr Hussain’s attention in December 2013 and in January 2014 he sought advice from HR about it more than once.  It was raised again by the Claimant in an email to Mr Hussain and HR, referring to legal advice about racial harassment.
5.22.4. Although not a true comparator, the Tribunal considered that there was a striking difference between the way one allegation of misconduct was treated – i.e. the allegation by Mr Osborne that the Claimant smelt of alcohol – and the way this allegation of misconduct was treated.  Mr Stones immediately sought advice from his manager, spoke to the Claimant, and sent him home while the matter was investigated, whereas there is no evidence that Mr Stones’s manager (or HR) took any steps to look into the allegation against him.  Mr Stones in white.
5.22.5. We have accepted that Mr Hussain, when dealing with the Claimant’s disciplinary proceedings, sought advice from HR and, in the light of that, told the Claimant that he needed to put in a written grievance.  But Mr Hussain was only dealing with the Claimant’s disciplinary proceedings, whereas the allegation of potential misconduct by Mr Stones was drawn to the attention of his managers and of HR as well and over a much longer period.
5.22.6. It appeared to be suggested that a formal grievance needed to be submitted before this could be investigated, but (even leaving aside the fact that this was an allegation of serious misconduct by Mr Stones) the Claimant had made a written complaint.  Even if there was some format procedural requirement, nobody at management level or in HR contacted the Claimant between 11 November 2013 and his disciplinary hearings in January 2014 to ask whether he wanted to submit a grievance or suggest that he do so.  Nor was such a step taken when the Claimant raised the matter again with HR in January 2014.
5.22.7. We have explained in our findings of fact above our reasons for concluding that when the Claimant said there were only two matters of “racism”, he must have intended that to include the difference between the way his complaint about Mr Stones and the allegation against him were handled.  We did not regard the Claimant as resiling from his clear evidence-in-chief, that he thought his complaint about Mr Stones was disregarded or disbelieved because of the colour of his skin.
5.23. Those were facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the failure to investigate the Claimant’s complaint of racial abuse by Mr Stones was less favourable treatment of him on the grounds of race.  Put shortly, two allegations of misconduct were made.  One, against an employee of Indian ethnicity, was promptly investigated and led to disciplinary proceedings.  The other, against an employee of white ethnicity (and albeit made in the context of those disciplinary proceedings) was completely ignored.  The complaint that was ignored was a complaint of serious racial abuse.  It was drawn to the attention of managers and HR.  The suggestion that a formal grievance was required seemed spacious, when a written complaint had been made and when nobody contacted the Claimant to see whether he wanted to put in a formal grievance or drew his attention to the need to do so (prior to 13 January 2014).
5.24. Accordingly, it was for the First Respondent to prove that the less favourable treatment of the Claimant was not on the grounds of race.  It did not discharge that burden.  Apart from the evidence of Mr Hussain, referred to above, the First Respondent did not call any evidence to explain the failure to investigate the Claimant’s allegation.  Mr Hussain’s evidence dealt with his own decisions (which, for the avoidance of doubt, we found were not made on the grounds of the Claimant’s race).  However, that did not explain why Mr Ofield, Mr Bevan and the First Respondent’s HR department had not investigated the matter or done anything about it.”

9.	The Tribunal concluded that this aspect of the Respondent’s direct discrimination claim succeeded.  The Tribunal did not refer to the question of whether the First Respondent had suffered a detriment and did not identify any such detriment.

10.	A Remedies Hearing was held on 12 November 2014.  The Tribunal recorded that it had upheld the complaint that the failure to investigate his allegation that Mr Stones had made racially abusive remarks to him amounted to an act of direct discrimination.  It noted that the “allegation was in fact false and had been invented by the Claimant”.  It referred to the evidence given at the Remedies Hearing, noting that the First Respondent believed that the failure to investigate was an act of race discrimination but he “did not explain the effect on him of that particular aspect”.  They recorded that the First Respondent had become depressed because he was subjected to a long disciplinary process to investigate the allegation about him drinking alcohol.  That was the reason for the illness and upset that he had suffered, not the failure to investigate. 

11.	In those circumstances, the Tribunal determined that no award for injury to feelings should be made.  The material parts of its ruling are as follows:
“3.9. The Tribunal considered this evidence.  We also bore in mind our finding that the Claimant’s allegation about Mr Stones was untrue and had been invented by him.  It was that, invented, allegation that the First Respondent failed to investigate.  Furthermore, even the basis the Claimant was advancing for his depression and injured feelings – what he maintained was a false allegation that he smelt of alcohol and the investigation and disciplinary proceedings that followed – was inconsistent with the Tribunal’s findings that the Claimant admitted, at the time, that he had been drinking the night before.
…
3.12. Taking all those matters into account, the Tribunal was not satisfied that the First Respondent’s failure to investigate the Claimant’s complaint about Mr Stones caused him any injury to his feelings.  His evidence was repeatedly to the effect that his ill health and injured feelings were associated with the allegation that he smelt of alcohol; as he put it, that people at work and in his community referred to him as a “drunkard”.

12.	In deciding upon the appropriate remedy, the Tribunal held:
“The remedy sought by the Claimant was an award for injury to feelings.  We have set out the relevant principles above, and we kept firmly in mind that Tribunals’ awards must not be so low as to diminish respect for the anti-discrimination legislation and that it must be the rare and exceptional case in which no award for injury to feelings is made.  As Mr Lewis submitted, the Tribunal found that, in one respect, the First Respondent had treated the Claimant less favourably on the grounds of his race by failing to investigate his allegation against Mr Stones.
Nonetheless, as noted above, it remains for the Claimant to prove the nature and extent of his injury.  For the reasons set out in detail above, the Tribunal found as a matter of fact that the First Respondent’s failure to investigate the Claimant’s allegation against Mr Stones did not injure his feelings or cause him depression.  His own clear evidence was to the effect that his injured feelings and depression were caused by the allegation that he smelt of alcohol and the investigation and disciplinary proceedings that followed.  Although in the ordinary case it might indeed be surprising that an individual suffered no injury to feelings as a result of a discriminatory failure to investigate his complaint of racial abuse, it is perhaps less surprising here, when it is borne in mind that the complaint itself was entirely invented by the Claimant. 
The logical consequence of a finding of fact that the one proven act of discrimination did not itself cause injury to the Claimant’s feelings is that no award of compensation under that head should be made.  Recognising that consequence, the Tribunal considered whether this was consistent with the case law, and with the principle that respect for the anti-discrimination legislation must not be diminished.  Again, we took the view that respect for the anti-discrimination legislation would not be diminished by a lack of compensation for a failure to investigate an entirely fabricated and extremely serious allegation against an individual.
Accordingly the Tribunal’s decision is that no award for injury to feelings should be made.  Ms Liebert submitted that, in the light of the Tribunal’s findings, the appropriate remedy was a declaration and the Tribunal agreed.  The First Respondent’s discriminatory failure to investigate the complaint is properly remedied by the making of a declaration.  That is set out in the judgment above.”

13.	The Appellant appealed against that finding.  The First Respondent has been debarred from taking part in the appeal by reason of his failure to file an answer to the Notice of Appeal.  The Second Respondent did not resist the appeal.  For completeness, we note that, at the time of the hearing before the Employment Tribunal, the Appellant’s name was Advance Security UK Limited.  It subsequently changed its name to Cordant Security Limited and permission was granted by the Employment Appeal Tribunal by order dated 4 June 2015 to amend its name in this appeal to Cordant Security Limited.

The Statutory Framework
14.	Part 5 of the Equality Act 2010 (“the Act”) deals with discrimination at work.  Section 39 of the Act provides, so far as material, that:
“39. Employees and applicants
…
(2) An employer (A) must not discriminate against an employee of A's (B) -
(a) as to B's terms of employment;
(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;
(c) by dismissing B;
(d) by subjecting B to any other detriment.”
15.	Direct discrimination is defined in section 13(1) of the Act in the following terms:
“13. Direct discrimination
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others
…”

16.	The jurisdiction of the Employment Tribunal is set out in section 120 of the Act in the following terms:
“120. Jurisdiction
(1) An employment tribunal has, subject to section 121, jurisdiction to determine a complaint relating to -
(a) a contravention of Part 5 (work);
(b) a contravention of section 108, 111 or 112 that relates to Part 5.”

17.	Section 124 of the Act deals with the remedies that an Employment Tribunal may award and provides, so far as material, that:
“124. Remedies: general
(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).
(2) The tribunal may -
(a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;
(b) order the respondent to pay compensation to the complainant;
(c) make an appropriate recommendation.”

The Issues
18.	Against that background, the issues that arise are as follows:
(1)	Was the Tribunal entitled to find that there had been direct discrimination, and to grant a declaration to that effect, in the absence of any finding that the First Respondent had suffered a detriment, and given its finding that the First Respondent had not suffered any injury to feeling as a result of the failure to investigate the allegation of misconduct that he had made (ground 2 of the appeal)?  
(2)	Did the Tribunal err in its approach to determining whether the First Respondent had established facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the failure to investigate amounted to less favourable treatment on the grounds of race or in its approach to determining the appropriate comparator (grounds 1 and 3 of the appeal)?

The Principal Issue - Detriment
19.	The Appellant contends that the Tribunal erred in failing to consider if the First Respondent had suffered any detriment.  Further, the Appellant submits that if any finding of detriment were to be inferred, that finding would be perverse given the finding at the Remedies Hearing that the First Respondent had not suffered any injury to feelings.

20.	First, in our judgment, a finding that an employee has suffered a detriment is a necessary element for a finding that there has been a contravention of section 39(2)(d) of the Act.  That follows from the wording of section 39 of the Act and the structure and wording of the Act as a whole.  Section 39(2)(d) requires that the employer has (a) discriminated against an employee (b) by subjecting him to a detriment.  Discrimination is defined in section 13 of the Act.  There will, however, be no contravention of section 39(2)(d) of the Act unless both the elements of discrimination (less favourable treatment on grounds of a protected characteristic) and detriment are present.  Furthermore, that is reflected in the provisions governing the jurisdiction of the Tribunal and the remedies that it can award.  The jurisdiction of the Tribunal extends to determining if there has been a contravention of Part 5 of the Act.  The Tribunal does not have jurisdiction to determine merely if there has been discrimination (that is less favourable treatment on grounds of a protected characteristic).  Rather, it determines whether there has been a contravention of Part 5 of the Act.  In the present case that requires both a finding of discrimination and detriment.  Similarly, the jurisdiction to grant a declaration arises under section 124 of the Act if there has been a contravention of a provision of Part 5.  That again requires a finding that there has been both discrimination (that is less, favourable treatment on grounds of a protected characteristic) and detriment.

21.	Furthermore, the case law recognises that both less favourable treatment and detriment is required to make out the statutory cause of action.  As Elias LJ expressed it in Deer v University of Oxford [2015] IRLR 481 at paragraph 24 in the context of a claim for victimisation:
“a claimant must show both that she has been subject to less favourable treatment, since that is necessary to establish the discrimination; and that she has suffered a detriment, since that is a requirement of the specific cause of action.”

22.	Secondly, the question then arises as to what constitutes a detriment.  In general terms, detriment is to understood as explained by Lord Hope in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 at paragraphs 34 and 37:
“… the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. 
35 But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Brightman LJ.  As he put it in Ministry of Defence v Jeremiah [1980] ICR 13, 30, one must take all the circumstances into account.  This is a test of materiality.  Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?  An unjustified sense of grievance cannot amount to “detriment”: Barclays Bank plc v Kapur (No 2) [1995] IRLR 87.  But, contrary to the view that was expressed in Lord Chancellor v Coker [2001] ICR 507 on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence.  As Lord Hoffmann pointed out in Khan’s case [2001] ICR 1065, 1077, para 52, the employment tribunal has jurisdiction to award compensation for injury to feelings whether or not compensation is to be awarded under any other head: Race Relations Act 1976, section 57(4); 1976 Order, article 66(4).  Compensation for an injury to her feelings was the relief which the applicant was seeking in this case when she lodged her claim with the tribunal.  Her complaint was that her role and position had been substantially undermined and that it was becoming increasingly marginalised.”

23.	That is reflected in the judgment of Elias LJ with whom Floyd and Sullivan LJJ agreed in Deer v University of Oxford [2015] IRLR 481 at paragraph 25 where Elias LJ said this:
“The concept of detriment is determined from the point of view of the claimant: a detriment exists if a reasonable person would or might take the view that the employer's conduct had in all the circumstances been to her detriment; but an unjustified sense of grievance cannot amount to a detriment: see Derbyshire v St Helens MBC [2007] UKHL 16; [2007] ICR 841, para. 37 per Baroness Hale reciting earlier authorities.”

24.	The application of those principles to the failure to investigate complaints which are, in fact, unsubstantiated was considered by the Court of Appeal in Deer v University of Oxford [2015] IRLR 481.  There, the Claimant brought claims contending that she had been treated less favourably in respect of a grievance and an appeal that she had brought by reason of the fact that she had previously brought a claim against the University.  The claims were struck out on the basis that the Claimant had not suffered a detriment as the grievance had no merit.  The Court of Appeal reversed that ruling.  Elias LJ, with whom Floyd and Sullivan LJJ agreed, considered that the mere fact that the grievance was bound to fail did not exclude the possibility of there being a detriment.  The Claimant may still feel a sense of injustice, giving rise to injury to feelings, as a result of being treated less favourably.  The material part of the judgment is at paragraph 26 which is in these terms:
“In fact it seems to me - as it did to Underhill LJ as he said when granting permission to appeal - that although the concepts of less favourable treatment and detriment are distinct, there will be very few, if any, cases where less favourable treatment will be meted out and yet it will not result in a detriment.  This is because being subject to an act of discrimination which causes, or is reasonably likely to cause, distress or upset will reasonably be perceived as a detriment by the person subject to the discrimination even if there are no other adverse consequences.  That is perhaps more starkly the position in cases of discrimination on race or sex grounds where it can be readily seen that the act of discrimination of itself causes injury to feelings.  But similar reasoning applies to victimisation discrimination.  This is also an important protection for an employee or ex-employee, and a real and burning sense of injustice or unfairness may be experienced by someone who is discriminated against on this ground.  It is perhaps possible that there may be evidence showing that in fact in a particular case the claimant did not suffer any sense of grievance or injustice notwithstanding less favourable treatment, but the normal inference would surely be that he or she did.”

25.	Against that background, in our judgment, the position in the present case is as follows.  First, it is a necessary element of a finding of a contravention of section 39(2)(d) of the Act that the employee has suffered a detriment.  Secondly, a sense of grievance or injustice may amount to a sufficient detriment where a person is treated less favourably in terms of the treatment of a complaint.  Thirdly, however, in the present case, on the facts as found by the Tribunal, the First Respondent could not show any detriment.  The allegation was fabricated and if it had been investigated there would have been no substantive benefit to the Appellant as it would have been found to be untrue.  The Tribunal expressly found that the First Respondent did not suffer any injury to feelings as a result of the failure to investigate the fabricated complaint.  Any injury to feelings arose from other circumstances not the way in which his allegation of misconduct had been dealt with. In those circumstances, on the facts, this is one of the cases where the First Respondent did not suffer any sense of grievance or injustice as a result of the less favourable treatment.  The Tribunal accordingly erred in granting a declaration that there had been direct discrimination in respect of the failure to investigate the First Respondent’s allegation.  One of the necessary elements of a finding of a contravention of section 39(2)(d) of the Act, namely detriment, was not present.  The appeal will be allowed and the declaration set aside.  As the only conclusion that the Tribunal could come to on the facts as found by it is that there was no contravention of Part 5 of the Act, there is no purpose in remitting the matter. 

26.	The question arises as to whether a person who has knowingly fabricated an entire complaint could ever have suffered a detriment by reason of a failure to investigate that complaint.  We recognise that where an entire complaint is knowingly fabricated it may be difficult for a Claimant to establish that he or she has suffered a detriment because that complaint is not investigated.  The Claimant will not have suffered any substantive disadvantage as a result of the failure to investigate as the complaint is untrue.  The usual inference that a person who has been treated less favourably will have a sense of grievance or injustice may be rebutted if the entire complaint is knowingly fabricated and the complainant may be unable to establish that he has any, or any legitimate, sense of grievance.  It is, however, necessary to bear in mind the range of circumstances in which complaints are made.  They may range from a complaint which turns out to be unsubstantiated (although genuinely believed in), through those complaints that are exaggerated or partially true, to those which are entirely fabricated.  Whether or not a person has a real sense of grievance or injustice arising out of less favourable treatment involving the failure to investigate a particular complaint is a matter for the Tribunal to decide having regard to all the circumstances of the case. 

The Second Issue - The Approach to Determining Less Favourable Treatment
27.	In the light of our conclusion on the principal issue, we deal with the other issues briefly.  The Appellant put forward two grounds of appeal.  First it is said that the Tribunal erred in finding that the burden of proof shifted to the Appellant in the present case.  In that regard, the Tribunal identified the correct approach in paragraph 5.22 of its Written Reasons is set out above.  The Tribunal correctly asked if the Claimant had proved facts from which it could conclude, in the absence of an adequate explanation, that the failure to investigate the allegation constituted less favourable treatment on grounds of race. 

28.	In the present case, the factors that the Tribunal took into account are set out in paragraph 5.22 of its Written Reasons.  In essence, the Tribunal considered that in one case an allegation of misconduct was made, the allegation was responded to quickly, the person concerned was sent home and there was an investigation.  In the second case, an allegation of misconduct (the use of racially abusive language) was made in writing, and repeated to senior managers, over a long period of time, but no action was taken and the allegation was not investigated.  The allegation made by a white person was investigated.  The allegation was made by a person of Indian ethnic origin was not investigated.  The person concerned also gave evidence that he thought that his complaint was disregarded or disbelieved because of his race.  There were striking similarities between the two situations and a striking difference in response.  In all the circumstances, the Tribunal were entitled to conclude on the material before it, that the Claimant had proved facts from which it conclude that there was less favourable treatment on grounds of race.  No adequate explanation for the treatment, that is the failure to investigate the allegation of misconduct, was given.  Evidence was given, and accepted, that Mr Hussain who conducted the disciplinary inquiry into the allegation against the First Respondent did not investigate the complaint for reasons unconnected with the First Respondent’s ethnic origins. There was no explanation as to why others within the Appellant’s organisation had not taken steps in relation to the allegation of misconduct made against the Respondent’s supervisor.  The Tribunal was entitled to reach the conclusion that it did on the question of less favourable treatment.

29.	The Appellant also contended that the Tribunal erred as it failed to appreciate that there was a material difference between a situation where a person made an allegation of misconduct and a situation where a person who was already facing disciplinary allegations himself made an allegation of misconduct.  It was submitted that the Tribunal should have considered that an appropriate hypothetical comparator was a white male facing a disciplinary allegation and then considered how such a hypothetical comparator’s allegation would have been dealt with.  The background to that submission is that the First Respondent had made his allegation at a time when he was facing a disciplinary allegation whereas Mr Stone was not facing any disciplinary allegations when he made his allegation.

30.	In our judgment, the Tribunal was entitled to take the view that there was no material difference between the two situations.  Each case involved the making of a serious allegation of misconduct.  The Tribunal was entitled to consider how each such allegations was dealt with.  As an evidential matter in the present case, one allegation of misconduct (made by Mr Stone) was acted upon and investigated quickly; another (made by the First Respondent) was not.  In those circumstances, the Tribunal were entitled to regard the circumstances of the two cases as being materially similar.  These grounds of appeal are not therefore made out.

Conclusion
31.	A claim that there has been a contravention of section 39(2)(d) of the Act 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.  The less favourable treatment involved a failure to investigate an allegation made by the First Respondent of misconduct.  That allegation was fabricated and was untrue.  The First Respondent did not suffer any substantive disadvantage by the allegation not being investigated as it would have been found to be untrue.  The Tribunal found that the First Respondent did not, in fact, suffer any sense of grievance or injustice causing injury to feelings as a result of the fact that his allegation was not investigated.  In those circumstances, the Tribunal erred in finding that there had been a contravention of section 39(2) of the Act and erred in granting a declaration.  The appeal is allowed and the declaration is set aside.