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Ealing London Borough Council v. B Garry


Employment Appeal Tribunal

Lack of awareness of an investigation into an applicant's alleged fraud was not detriment for the purposes of s.4(2)(c) Race Relations Act 1976. For a claim to succeed there had to be some practical manifestation of racial discrimination.
The local authority ('L') appealed against an employment tribunal's decision, promulgated on 14 May 1999, that it had racially discriminated against the respondent ('W'), a Nigerian woman. W cross-appealed findings that there had been no racial discrimination in respect of treatment by her line manager and of an initial failure to inform her that a fraud investigation would not proceed. The employment tribunal rejected W's complaint that she had been unfairly dismissed. Shortly before the investigation in W's activities, another Nigerian was investigated by L for fraud and was dismissed. W had been employed as a housing benefits rents team manager by L for just over seven years. In 1996 L's housing benefit investigation team was informed that W had, in her previous employment with another local authority in London, been subject to a housing benefit fraud investigation. W was subsequently investigated by L and found to have made an application for a tenancy incentive scheme grant from the Paddington Churches Housing Association in which she had failed to declare, as she should have done, personal proprietary interests in Tottenham. The investigator reported his findings to the Director of Regeneration and Housing for L who concluded that there was insufficient evidence to require a disciplinary hearing. Normally such investigations were directed at tenants as opposed to officers. At issue was whether L had stereo-typed Nigerians as likely to be involved in Housing Benefit fraud. The employment tribunal found that, irrespective of W's race, she would have been investigated once the previous investigation into her had come to light and that the conclusion that W had acted fraudulently was reasonable.
However it further found that L had discriminated against W by using a special investigator rather than an ordinary investigator and that W had been the subject of a detriment because of her ethnic origin in that she had not been aware of the ongoing investigation that should have terminated at an earlier date. L submitted in its appeal that there had been no grounds for the employment tribunal to conclude that W had been treated differently on the grounds of race or, if there were such grounds, that W had suffered no detriment within the meaning of s.4(2)(c) Race Relations Act 1976. W submitted in her cross-appeal that the employment tribunal misdirected itself as to what constituted a detriment within the meaning of s.4(2)(c).
HELD: (1) The inference of racial discrimination that the employment tribunal drew from the appointment of a special investigator into W's activities was not "wholly impermissible" or perverse, even though other inferences could have been drawn in the circumstances. This was a case that involved allegations of racial stereotyping. The law did not require W to be able to point to another employee of L to demonstrate that in the absence of stereotyping the disadvantageous treatment did not occur. (2) S.1 of the Act defined race discrimination. S.4(2)(c) provided that it was unlawful to discriminate against an employee on racial grounds by dismissing him "or subjecting him to any other detriment". W's case lacked evidence of, and consequently the employment tribunal made no findings on, any disadvantage caused to her because of her lack of awareness of the ongoing nature of the investigation into her alleged fraud. There had to be some practical manifestation of racial discrimination for a claim based on it to succeed. Since the employment tribunal failed to find any such detriment to W, L's appeal had to succeed. (3) W's cross-appeal failed because the employment tribunal found that the investigation was commenced for reasons other than W's ethnicity. (4) Since W had failed to discharge the burden of proof her complaint was dismissed.
Appeal allowed. Cross-appeal dismissed.

LTL 2/3/2001, [2001] Emp LR 159, Daily Telegraph, November 7, 2000

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