Handling discrimination-based grievances

Lisa Moore explores considerations outside of the Acas Code of Practice when dealing with a complaint that involves discriminatory behaviour

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Grievances relating to unlawful discrimination should, like all grievances, be dealt with in accordance with your company’s grievance procedure and in line with the Acas Code of Practice on disciplinary and grievance procedures. But what are the other considerations when the grievance involves discrimination? 

Recognising an employee grievance is key. The grievance may be by letter, by email, verbal or form part of their resignation. According to the Acas code, grievances are “concerns, problems or complaints that employees raise with their employers”. If you suspect a grievance is being raised, clarify this with the employee and, where required, commence the grievance process. 

While the Acas code only applies to individuals who are still employed by your company, it is also advisable to have a process for investigating grievances of former employees and for workers.

How can I prevent grievances?

A comprehensive, well-drafted and regularly updated grievance procedure is critical to the success of a fair and consistent grievance process. This can help deal with issues quickly, before they escalate.

Making employment contracts and equal opportunities, anti-harassment and anti-bullying policies clear, training staff on policies during induction and regular refresher training can help staff understand what conduct is unacceptable. This should assist in reducing the risk of discrimination arising in the workplace. 

How to deal with claims

Although many grievances can be resolved at an early stage informally, in discrimination or harassment cases, an employer will often dispense with informal resolution or mediation and immediately start the formal grievance process.

Your company’s grievance procedure must reflect the Acas code requirements and be followed carefully, particularly if it is contractual. Employment tribunals must take the Acas code into account when considering an employer’s reasonableness. It can adjust compensation by up to 25 per cent upwards if the employer has unreasonably failed to comply, or downwards if the employee has unreasonably failed to comply with the code.

While discrimination-based grievances are procedurally similar to other grievances, consideration as to whether the grievance process can be conducted while the employee who has raised the grievance remains in their usual working environment is required. The impact the events complained of have had on the employee, and whether they are well enough to attend work, will determine action taken. 

During some discrimination-based grievance processes, you may consider temporarily moving the employee raising the grievance to a different location or similar role. Or, if these options are not possible, you may suspend the employee on full pay as an alternative recourse. Consultation with the employee before acting in this respect is pivotal, as transferring or adversely treating an employee claiming discrimination might be viewed as detrimental treatment because they raised a discrimination-related grievance.

The risk of failing to deal with such complaints properly could result in claims for discrimination, victimisation and/or constructive unfair dismissal.

Should you suspend someone who has been accused of discrimination?

When considering appropriate action regarding the employee making the discrimination complaint, you may also need to consider action regarding the accused. No measures may be required if the individual making the complaint has been moved to a different work location or role or is not attending work. However, there may be situations when moving or suspending the accused employee is appropriate. 

The Acas guidance ‘Discrimination: What to do if it happens states that suspension on full pay should only be used as a last resort and should be reviewed to ensure suspension is no lengthier than required. 

It is advisable if suspending or moving an accused employee to state in writing that the change is temporary, not an assumption of guilt nor a disciplinary sanction. Seeking agreement to a change will be less risky as, otherwise, suspension could be construed as a breach of the employee's contract in some circumstances. 

Discrimination-based grievances can be particularly emotional and require sensitivity and thorough, prompt action, usually meaning that the informal process is bypassed. There are often other considerations to bear in mind, such as whether the employee making the complaint or the employee accused should be moved or suspended pending the outcome of the discrimination grievance process. 

Lisa Moore is an employment solicitor at Harper James