![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201905.jpg)
Disciplinary, capability and grievance procedures
[ch 7: pages 255-256]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);
• dismissing a court worker with severe menopause symptoms who made a mistake as a consequence of her symptoms (Davies v Scottish Courts and Tribunals Service [2018] 4104575/2017);
• 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 while white co-workers were called to 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 ill-health (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 offered — lack of staff in a small HR department — did not justify failing to treat 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).
For more information on disciplinary and grievance procedures, see Chapter 10: Dismissal.
When raising issues of discrimination in the context of a disciplinary process, it is usually better to do this sooner rather than later, clearly and in writing. Leaving it until later, for example, at the appeal stage, can make it appear as if the allegations are only being raised to avoid dismissal or to secure a financial settlement.
An employer’s argument that when resolving disciplinary issues it is not appropriate to consider how others are treated should always be resisted. Discrimination is about different treatment linked to a protected characteristic. It can only ever be tackled by comparing the treatment of those with the characteristic to those without it.
LRD Booklet: Discipline and grievance procedures — a guide for union reps (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1929)