Disciplinary, capability and grievance procedures

Disciplinary, capability and grievance procedures must be non-discriminatory. Examples of discrimination have included:

• carrying out an investigation into an allegation of fraud that lasted longer than would have been the case if the employee had been white (Garry v LB Ealing [2001] IRLR 681);

• failing to take account of a female employee’s disclosure, in a capability process, that menopause symptoms were affecting her work (Merchant v British Telecom plc ET 1401305/11, unreported);

• continuing with a disciplinary hearing even though the employee was absent with a pregnancy-related sickness (Abbey National v Formoso [1999] IRLR 222);

• starting a formal capability procedure against the only black divisional director at an NHS Trust when white co-workers were only asked to attend informal meetings. Then conducting sham disciplinary proceedings leading to summary dismissal after the black director lodged a grievance alleging race discrimination, supported by statistical evidence that black employees were significantly more likely to be disciplined or dismissed than non-white staff (Central Manchester University Hospital NHS Foundation Trust v Browne [2011] UKEAT/0294/11);

• refusing to wait until after an occupational health appointment and publication of the occupational health report before conducting a dismissal hearing for a claimant accused of gross misconduct who was suffering from work-related depression brought on by the disciplinary process (Hibbert v The Home Office & Others [2013] UKEAT 0138/13/2410);

• conducting a misconduct investigation into activities of a bank manager with depression without pre-warning him of the allegations; and not allowing him to be accompanied to the investigation meeting (Royal Bank of Scotland v O’Doherty [2012] UKEAT/0489/12/89);

• failing to investigate and take decisive action following allegations of racial name-calling and abusive remarks, and failing to recognise that racial banter and jokes are not acceptable. The excuse — lack of staff in a small HR department — was no justification for not treating the matter as a top management priority (Burrell v Micheldever Tyre Services Limited [2013] UKEAT 0427/12/1502);

• denying disabled employees who were absent due to disability-related absence access to a bonus designed to reward attendance (Land Registry v Houghton & Others [2015] UKEAT/0149/14/BA).

It is not generally a reasonable adjustment to expect an employer conducting a disciplinary meeting to “look behind” a criminal conviction where the criminal acts were the result of a mental health disability (Howorth v North Lancashire Teaching Primary Care Trust [2014] UKEAT/0294/13/2208).

Ignoring a Final Warning, or “looking behind” a Warning to see why it was given in the first place, is not normally a reasonable adjustment (General Dynamics Information Technology Limited v Carranza [2014] UKEAT/0107/14/KN).