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 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 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 comparable colleagues were only asked to attend 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 than non-white staff (Central Manchester University Hospital NHS Foundation Trust v Browne UKEAT/0294/11);

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

• a bank conducting a misconduct investigation into activities of a branch manager suffering from depression without (1) pre-warning him of the allegations; and (2) allowing him to be accompanied to the investigation meeting (Royal Bank of Scotland v O’Doherty 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, namely 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).