Garry v London Borough of Ealing [2001] IRLR 681
No, says the Court of Appeal in Garry v London Borough of Ealing where they considered again the meaning of detrimental treatment in discrimination cases.
All anti-discrimination legislation has a catch-all provision which prohibits employers from subjecting their employees to 'any other detriment'. 'Detriment' is not defined by the legislation, but the courts have held that it should be given its broad ordinary meaning. In De Souza v Automobile Association [1986] IRLR 103, the Court of Appeal said that to establish detriment a worker must show that they had been disadvantaged in the circumstances in which they had to work, as a result of the acts being complained about.
In Garry, Mrs Garry, a Nigerian woman, had been employed by Ealing Council as a Housing Benefits Team Manager since 1991. In 1996 the Council discovered that she had been the subject of a fraud enquiry in a previous housing benefit job with another local authority. The Council then decided to investigate Mrs Garry and chose the more serious of the two possible procedures, which involved a special investigator, without restriction on time or money.
In May 1997 Mrs Garry discovered that she had been investigated and a month later she was interviewed. In August 1997 the Council's Director of Housing decided that there was insufficient evidence to warrant disciplinary proceedings. The Director failed to tell Mrs Garry of this and she eventually found out in July 1998.
An Employment Tribunal found that Mrs Garry had been discriminated against on grounds of race. The Tribunal noted that shortly before the investigation had commenced into Mrs Garry, another Nigerian employee had been dismissed following an investigation into housing benefit fraud. The Tribunal was of the view that there would have been an investigation irrespective of Mrs Garry's race, but it found that the decision to use the more serious investigative procedure was influenced by a stereotypical view of her Nigerian origin. The Tribunal held that the Council had assumed that because Mrs Garry was Nigerian the enquiry was likely to be on a much bigger scale. Although the delay in telling Mrs Garry of the resulting investigation was mainly due to incompetence and not discrimination, the Tribunal still found that discrimination had been proved. The Tribunal concluded that Mrs Garry had suffered a detriment as a result of the investigation being allowed to drag on without her being made aware of what was happening. This was related to the nature of the investigation, in that an ordinary investigation would have concluded much earlier.
On appeal, the question arose as to whether Mrs Garry had been subjected to a 'detriment'. The EAT held that there had been no detriment, as Mrs Garry had not been disadvantaged in her employment. The EAT thought that the adage 'ignorance is bliss' applied. It said that 'we consider that there would have to have been evidence before the Employment Tribunal from which it could conclude that the lack of awareness of Mrs Garry had actually caused her some disadvantage. There was no evidence of any'.
The Court of Appeal disagreed with the EAT. Allowing Mrs Garry's appeal the Court held that the detriment was obvious. The investigation continued for much longer than it would otherwise have done because of Mrs Garry's ethnic origin. The fact that senior officers of the Council knew that Mrs Garry was the subject of a serious and lengthy investigation was detrimental to her in the sense that she was disadvantaged in the circumstances in which she had to work. The fact that for some time she did not know what was going on did not negate the detriment.
This is a very important case that establishes the principle that it can be detrimental to have things going on behind your back.