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Discrimination
Sometimes there are good grounds for suspecting that there may be unlawful discrimination (whether conscious or unconscious) behind employer decisions.
A decision whether or not to raise discrimination in the context of a disciplinary hearing must be taken with great care, and reps can provide valuable support here. If a worker believes that discriminatory factors are contributing to management actions (whether or not intentionally) then where a tribunal claim is a possibility, the issue should be raised clearly and in writing, preferably at a reasonably early stage of the process. Leaving it later, for example, only raising it at the appeal, can make it appear as if the worker is only alleging discrimination to avoid dismissal or to prompt a financial settlement.
It is important that the employer addresses the allegation of discrimination properly before the disciplinary decision is taken, and does not try to hive it off 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 can only be tackled in practice by comparing this employee’s treatment with that of others in the same situation who do not share the protected characteristic.
See also Chapter 7: Overlapping disciplinary and grievance procedures.
If a worker suspects a decision has been taken for a discriminatory reason (for example, disability or pregnancy) he or she can ask for useful information using the statutory questionnaire procedure. These questions can be wide-ranging and can ask, for example, about past practice when making similar decisions. Guidance can be found on the Equality and Human Rights Commission website at: www.equalityhumanrights.com. Note the short timeframe for sending a statutory questionnaire. It must be done within eight weeks of the alleged discrimination.
The following case provides a recent disturbing illustration of discriminatory discipline and dismissal, within an NHS Trust:
After 34 years working for the NHS, Elliot Browne rose to become the first and only black man to hold the position of divisional director for clinical scientific services with the Central Manchester University Hospital NHS Foundation Trust. There were large overspends at the three divisions of the Trust. However, whereas the two white Divisional Heads were called to a “one-to-one” meeting to discuss the issues, by contrast, Mr Browne was told his job was at risk and was placed on the formal capability procedure. He lodged a grievance alleging race discrimination.
The Trust responded by initiating disciplinary proceedings against him. He then invoked the Trust’s Fairness at Work policy, pointing to statistics demonstrating that black employees were substantially more likely to be disciplined or dismissed at the Trust than white staff. The Trust ignored this evidence and instead summarily dismissed him.
The EAT upheld a finding by the employment tribunal that the dismissal proceedings were a sham, the Trust’s investigation was cursory and the Trust had no honest belief in his guilt or poor performance. Mr Browne was awarded compensation of £933,000.
Central Manchester University Hospital NHS Trust v Browne UKEAT/0294/11