Don’t be afraid to admit discrimination if there is clear evidence of it, says legal expert Beverley Sunderland

Handling a grievance at work is difficult enough for all concerned, but it is even more so when the allegation is one of discrimination such as ‘my manager is homophobic and treats me differently’ or ‘ever since I announced I was pregnant nothing I do is right’.

What if the employee raises this grievance during a disciplinary process? It is easy to be cynical and view the complaint as self-preservation, but if the allegation is one of discrimination that may affect the outcome of the disciplinary – for example, the manager who alleges poor performance is said to have a problem with women – then it is usually best to investigate the grievance first. The same would apply to other processes such as redundancy.

Employers should always follow the Acas Code of Practice, because failure to do so can result in an uplift of 25 per cent in compensation. Keep the process confidential. Sometimes witnesses will want to remain anonymous, because the subject matter might be sensitive or they may fear repercussions. If there is a good reason for anonymity then allow it – but ensure that what they say is put to the alleged discriminator so they know what case they are answering.

Should the accused be suspended? The employer owes a duty of care to both employees and only if there is substantiated evidence of potential gross misconduct or a valid concern that they will interfere in the investigation should the accused employee be suspended. Suspension is a serious step to take and should be exercised sparingly.

Accused employees may go off sick. This should not prevent the employer from investigating as much as they can and then giving the accused employee the opportunity to input – perhaps through written responses if they do not want to attend a meeting. An employee who does not want to cooperate may find that a decision is taken without their input, particularly if there is a discrimination claim from the employee who raised the grievance.

Often it is tempting, if a grievance is not upheld, to discipline an employee for raising false claims. However, unless the outcome was that the employee raised the allegations in bad faith, then taking disciplinary action against them might lead to a successful claim for victimisation. This is a stand-alone claim of discrimination aimed at protecting those who allege discrimination. Only in very limited circumstances, such as the employee raising multiple grievances on the same issue and refusing to accept the outcome, can a successful claim for victimisation be avoided.

Don’t be afraid to admit discrimination if there is clear evidence of it. While an employee may be awarded injury to feelings, the reality is that most employees are just glad they have been listened to. Failure to admit discrimination, when it clearly happened, can lead to an employee leaving and claiming constructive dismissal.

In any tribunal claim for discrimination, the tribunal will hear all the evidence and decide if discrimination happened. This is very different to how a tribunal will consider an unfair dismissal, which will be based on what the employer reasonably believed, having heard the evidence.

If there is clear evidence of discrimination but the employer has denied it in their grievance findings and in the claim, then this will compromise the employer’s integrity in tribunal and they risk a higher compensation award.

Finally, prevention is better than cure. Employers should have an equal opportunities policy and give training on it as well. Not only will this better prepare employees to avoid discrimination, but it also gives an employer a defence in tribunal and they will not be vicariously liable for the actions of discriminating employees, if the employer has taken all reasonable steps to prevent it occurring.

Beverley Sunderland is managing director of Crossland Employment Solicitors

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  • "Keep the process confidential"

    Lets not forget there are two sides here. The side making the allegation but also the manager. The manager who may well want to call witnesses and organise a defence. Any confidentiality order will make this impossible.

    One party may well want to make a complaint whilst asking for it be kept confidential, but that should not be imposed unilaterally on the other side.