Disciplinary, capability and grievance procedures 




Disciplinary, capability and grievance procedures must be non-discriminatory. Here are some examples of tribunal claims in which an employer’s procedures have been tainted by discrimination: 


• prolonging an investigation into alleged fraud beyond the point that would have been the case if the employee had been white (Garry v LB Ealing [2001] IRLR 681);




• ignoring 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; and responding to 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 by launching sham disciplinary proceedings leading to summary dismissal (Central Manchester University Hospital NHS Foundation Trust v Browne [2011] UKEAT/0294/11);




• refusing to adjourn a gross misconduct hearing for a claimant whose depression was brought on by the disciplinary process pending an occupational health report, and instead making stereotypical assumptions about mental health disability (Hibbert v The Home Office & Others [2013] UKEAT 0138/13/2410);




• conducting a misconduct investigation into the 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 a bonus linked to good attendance to disabled employees whose absences were disability-related (Land Registry v Houghton & Others [2015] UKEAT/0149/14/BA).