Raising discrimination


Sometimes there is good reason to believe that unlawful discrimination (conscious or unconscious) has featured in the disciplinary process. 


A decision whether to raise discrimination in the context of a disciplinary hearing needs great care, and reps can provide valuable support. If a worker believes discriminatory factors are contributing to management actions (whether or not intentionally), then especially if a tribunal claim is a possibility, it is usually best to raise the issue at an early stage of the process, clearly and in writing. Leaving it until later, for example, only raising it at the appeal , can make it look as if the member is only alleging discrimination to avoid dismissal, or to prompt a better financial settlement.


An employer should address any allegation of discrimination properly, before the disciplinary decision is taken. It is important that employers do not try to separate off allegations of discrimination into a separate grievance process, to be dealt with after the disciplinary or dismissal decision has been taken. 


Reps should not accept an employer’s argument that it is not appropriate to consider how other people are treated. Discrimination is about different treatment. It can only be tackled by comparing this employee’s treatment with that of others in the same situation but without the protected characteristic. 


A worker who suspects discrimination can find out more by asking questions — including questions about disciplinary procedures and sanctions — using the Acas guidance: Asking and responding to questions of discrimination in the workplace, available from the Acas website (www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf). This guidance replaces the statutory questionnaire procedure which was abolished in April 2014. 


Even if a dismissing officer is free from any discriminatory motive, there can still be discrimination (conscious or subconscious) further back in the disciplinary process, for example, by an investigating manager or HR officer (see CLFIS (UK) Limited v Dr Mary Reynolds [2015] EWCA Civ 439).


In 2015, Acas produced a new short guide: Discrimination – what to do if it happens (www.acas.org.uk/media/pdf/i/t/Discrimination-what-to-do-if-it-happens.pdf), which includes guidance to managers on handling allegations of discrimination through a disciplinary procedure.