Disciplinary, capability and grievance procedures

Disciplinary, capability and grievance procedures must be non-discriminatory. Examples of discrimination in such procedures 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);

• Dismissing an employee who had been involved in a fight, without taking account of his prior complaints of racism, when race was the background to the fight;

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

• Carrying on with a disciplinary hearing even though the employee was absent due to 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 colleagues in similar circumstances were only asked to attend additional one-to-one 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 at the Trust than non-white staff (Central Manchester University Hospital NHS Foundation Trust v Browne UKEAT/0294/11).