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Discrimination ‘do’s’ and ‘don’ts’

Whilst the use of International Days has increased over recent years, May brings some important days to the forefront of conversation such as Eid, world Asthma day and international day of families.

In recent months, discrimination has been a key topic of conversation in the employment law media. It is important for employers to keep a keen eye on legal updates to ensure they do not make the same mistakes as others. This article aims to summarise some of the recent employment law decisions which focus on discrimination.

Pregnancy discrimination – Topping v Stepping Stones Nursery

The Claimant, who joined her employer in February 2020 was dismissed shortly after announcing her pregnancy following comments which were made by the Claimant’s line manager. These included reference to the owner of the business coming round the Claimant being pregnant and further comments about whether the Claimant should keep the baby and about the baby’s father.

This occurred during the pandemic and, following her pregnancy announcement, the Claimant received a letter confirming her hours were being reduced from 37 hours to 20. No other employees’ hours were formally reduced, and on 20th April 2020 the Claimant’s role was made redundant. There appeared to be no selection process or redundancy criteria.

During the tribunal hearing it became clear from metadata that the employer had attempted to back-date letters to other employees and falsified documents about the Claimant’s redundancy, such as the selection criteria, in order to try to evidence a fair process which did not reflect reality.

The tribunal found that the dismissal was due to the Claimant’s pregnancy and the Tribunal awarded the Claimant £25,646.10 in February 2022 for unlawful pregnancy discrimination

Disability discrimination – Kelly v Sainsburys

The Claimant had been employed by the Respondent since 2000 as a trainee manager. In this case the Claimant was dismissed in 2020 following an accusation that he was groping female staff and using inappropriate language. The Claimant claimed his behaviour was a side effect of a brain injury he suffered following a car accident in 2004.

A timeline of the Claimant’s behaviour is as follows:

  • 2010 – the Claimant received a written warning for verbally abusing a female member of staff. During the disciplinary the Claimant understood his behaviour was unacceptable and apologised, confirming his behaviour had changed since the accident

The Claimant was referred to an occupational psychologist and it was reported he had significant limitations in his cognitive functioning and memory. It was confirmed “some of his behaviour may be partially accounted for as a consequence of his past head injury”

  • 2015 – the Claimant received an informal warning for calling a colleague a “yummy mummy” and asking for her number.
  • 2020 – a formal complaint was raised by another employee in April 2020 when he used inappropriate language to address a female colleague in addition to groping her and rubbing her shoulders.

An investigation ensued and the store manager decided no action should be taken. The complainant appealed this decision claiming there was evidence in support of her allegations, and her appeal was allowed. Following further investigation, it was decided the Claimant should partake in a disciplinary meeting. In the meeting, the Claimant stated he didn’t recall groping the employee or calling her names. In addition to these allegations, further allegations were included within the disciplinary process. However, despite the number of allegations, the chair also concluded there was no solid evidence, and no further action would be taken against the claimant.

Following the rejection of the appeal, a whistleblowing complaint was made which referred to the Claimant and he was suspended pending an investigation. Other colleagues came forward to make further allegations and one included a statement suggesting the Claimant had racially abused another member of staff. The Claimant was invited to a further investigation meeting in July 2020. During this hearing the Claimant was informed he would be dismissed.

The Claimant appealed stating the evidence had been falsified and there was no regard for his health and wellbeing. During the appeal the Claimant was asked about his symptoms, and he stated he is prone to saying what is on his mind, is childlike in his thought process, still has memory problems and has undertaken therapy. The decision to dismiss the Claimant was upheld as his “behaviour was not in line with [the company’s] harassment or fair treatment policies”.

Despite this the Tribunal found that the Claimant’s actions arose because of his disability and therefore he was treated unfairly in the disciplinary proceedings and by the decision to dismiss him.

The tribunal held the Claimant was discriminated against because of his disability and he was unfairly dismissed. A compensation hearing has been set for 20th May 2022.

Age discrimination – Robson v Clarke’s Mechanics Ltd

The Claimant was employed as a plumber and gas fitter and was made redundant without warning or consultation in 2020 aged 69. He was the oldest and most skilled worker in the business who had worked in the specialism since 1965.

In January 2020 the Claimant was made redundant and given 8 weeks’ notice. He was not given notice of the meeting, there was no consultation and the meeting lasted a mere 13 minutes. No reference was made to the redundancy or appeal procedure during the meeting.

The Claimant appealed the decision, asking if his age had been a factor. The director later sent the Claimant the scoring criteria, but the scores were not explained and the Claimant believed they were fabricated. For example, his performance score was second to last with a junior trainee scoring the least. The tribunal found the scoring process was discriminatory and based on the Claimant’s age.

The Claimant further claimed colleagues, including his supervisor, had called him “half-dead Dave”. When the supervisor was challenged during the tribunal, he stated the nickname was ‘banter’ and no malice was involved. The Claimant claims he didn’t make a formal complaint about this nickname until the end of his employment due to fears of what treatment he would receive if he questioned it.

Despite the Claimant not making a formal complaint when he became aware of the nickname, the tribunal ordered the employer to pay the Claimant £24,926.14 which included awards for unfair dismissal, discrimination, injury to feelings and interest.

What can employers do to prevent discrimination claims?

In light of the recent case law, it is clear that a fair and thorough procedure should be followed, and employers must ensure they have accurate records of all meetings, supporting documents and conversations with employees. Employers much also take account of potential protected characteristics that may be present and ensure any decision is not adversely affected by a protected characteristic and redundancy should not be seen as a method of ‘easily’ terminating an employee’s contract of employment; only being used where the circumstances require it.

Employers should take the time to converse with their employees through regular one to ones and allow employees to open up about what may be affecting them both at work and at home (should they wish to) without fear their concerns will reflect poorly on them in the future or impact their employment.

Employers should offer equality and diversity training to its employees at the outset of their employment and at regular intervals thereafter to ensure all employees understand what is expected of them. Discrimination claims can be very complex and very expensive; in two of the cases above alone the tribunal ordered over £50,000 of compensation.

Should you have any concerns regarding any employees or how to proceed with any matter, please do not hesitate to contact a member of our employment team for any specific advice.

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