An Employer’s responsibilities regarding Workplace Discrimination

Potentially lawful and fair grounds for the dismissal of an employee include conduct, capability and redundancy. However, an employee cannot be dismissed on lawful grounds alone and disciplinary procedures and stages exist to ensure that fair and reasonable decisions are made in the circumstances.

Qualifying criteria, such as the length of an employee’s service and the right not to be unfairly dismissed, must be factored in when considering dismissal. Some categories of worker other than employees are also entitled to other rights, such as paid leave and regulations preventing the less favourable treatment of part-time workers and fixed-term employees also exist.

Unlawful grounds for the dismissal of an employee are age, disability, race, sex, sexual orientation, gender reassignment, marriage and civil partnership, pregnancy and maternity, and religion or belief, defined as protected characteristics in the Equality Act 2010 Employee dismissal via any of these means is classed as discrimination.

Although workplace discrimination and employment discrimination are not always intentional, motive is irrelevant in all employment discrimination at work cases. For example, a manager will be deemed as discriminating an employee for counting time off due to pregnancy-related illness as absenteeism and, as a result the employee could file a complaint of sex or pregnancy discrimination.

Employees are entitled to be treated with dignity and respect and any employer deemed to be acting unreasonably, i.e. to act in such a way that destroys the mutual bond of trust and confidence with their employee, risks being subject to a bullying and harassment claim and complaints of constructive dismissal.

Even if an employer has policies to tackle workplace discrimination, harassment, victimisation and bullying, if they are not implemented it is impossible to prove that they have taken all reasonable steps to avoid employment discrimination. Therefore all employers should ensure that applicable parties should be fully trained in the complexities of workplace discrimination laws. An up-to-date Equal Opportunities and Diversity Policy should be produced so that an employer does not make themselves vulnerable to a claim made to an Employment Tribunal and it is recommended that they consult the Equality and Human Rights Commission’s Code of Practice when writing this Policy.

An employer can protect goodwill and staff, their two most valuable assets, by agreeing restrictive covenants, however the Courts scrutinise these closely so the employer should apply due care and attention when drafting any covenants to ensure that they are reasonable.

Whether or not you are an employee who thinks that they might have grounds for an employment tribunal claim, or if you are an employer defending a claim for employment tribunal compensation [or wanting legal advice or assistance on employment law matters in general], one of contact our specialist employment solicitors – initial phone advice is absolutely free – and we also run appropriate cases on no win no fee employment tribunal agreements.


ACAS Code of Practice on Disciplinary and Grievance Procedures

Following the Dispute Resolution Review (DRR) the Government changed the way we deal with problems at work by repealing the widely criticised statutory disciplinary and grievance procedures. In 2009 they were superseded by the ACAS Code of Practice on Disciplinary and Grievance Procedures, issued under section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992. To accompany the new Code, ACAS also produced a new non-statutory guide which provides information on handling discipline and grievance solutions in the workplace.

Disciplinary and grievance procedures are frameworks which provide clear and transparent structures for dealing with difficulties which may arise as part of the working relationship from either the employer’s or employee’s perspective.

They are necessary to ensure that everybody is treated in the same way in similar circumstances, to ensure issues are dealt with fairly and reasonably, and that employers are compliant with current legislation and follow the ACAS Code of Practice for handling disciplinary and grievance issues and are needed to:

• act as a point of reference for an employment tribunal should someone make a complaint about the way they have been dismissed

• enable employers and employees to agree suitable goals and timescales for improvement in an individual’s performance or conduct

• identify obstacles to individuals achieving the required standards (for example training needs, lack of clarity of job requirements, additional support needed) and to enable employers to take appropriate action

• let employees know what is expected of them in terms of standards of performance or conduct (and the likely consequences of continued failure to meet these standards)

• try to resolve matters without recourse to an employment tribunal claim

Grievance procedures are needed to:

• provide individuals with a course of action if they have a complaint (which they are unable to resolve through regular communication with their line manager)

• provide points of contact and timescales to resolve issues of concern

• try to resolve matters without recourse to an employment tribunal

Disciplinary and grievance procedures under the ACAS Code suggest parties should rather than must act in a certain way. A dismissal will no longer be found to have been an automatically unfair dismissal if the employer does not follow the procedure. However, Employment Tribunals ruling on individual cases can:

• Increase employment tribunal compensation by up to 25 per cent where the employer has ‘unreasonably’ failed to follow the ACAS Code for a disciplinary or a grievance

• Reduce compensation by up to 25 per cent where the employee has ‘unreasonably’ failed to follow the ACAS Code when carrying out employment disciplinary procedures or handling a grievance

if you’re an employer,don’t risk being caught out by getting the disciplinary and grievance procedure wrong – if you’re not sure what procedure you should follow contact our specialist employment tribunal solicitors on 0800 1404544 for free initial phone advice -it might be all you need to put your mind to rest.