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Andrew Whiteaker
Andrew Whiteaker,
How a failure to appropriately deal with allegations of discrimination can lead to further claims
06 November 2018

A recent case in the Employment Tribunal has highlighted the risk of further claims arising from an employer’s response to an initial allegation of discrimination being made either via an internal grievance process or a claim in the Employment Tribunal.

In Ms C Spragg v Richemont UK Ltd  (ET - 2206044/2017) the claimant issued proceedings against her employer alleging nearly 40 individual acts of discriminations covering a period of 4 years.

After a hearing which took almost three weeks, the Tribunal found that the respondent had a “blind spot” when it came to issues of discrimination, and that “a discriminatory state of affairs stemmed from the top of the organisation.

Allegations of racism and discrimination

The initial allegations concerned the respondent’s failure to promote the claimant into suitable roles on the grounds of her race and utilising a recruitment process that was “subconsciously biased towards candidates from a white European background”. Following this, the claimant raised a number of grievances regarding other incidents which she perceived to represent discriminatory behaviour. In one, members of staff refused to enter the lift with the claimant because she was black, and she was also given three days of compassionate leave when her brother died, compared with several weeks given to another employee in a similar position. A colleague called to give evidence at the Tribunal confirmed that she too had endured “casual banter and racism” at the office. The Tribunal was told that the respondent’s HR department tried to discourage and suppress the claimant’s complaints, but “had received and provided no equality and diversity training, it was not a priority for them”.

Intrusive surveillance

Around the time of submitting her claim to the Tribunal, the claimant was absent from work with a bad back. The respondent suspected she was not being truthful about her condition after she was spotted at a music festival and instructed a covert surveillance agency to put the claimant under close surveillance for a number of days. This surveillance included following her when she attended a wedding over a weekend, when she was out shopping and travelling on a bus.

The Tribunal rejected the respondent’s submission that all it was seeking to do through the surveillance was to protect its position within the litigation being pursued by the claimant. The Tribunal held that the surveillance was disproportionate and that there were more appropriate options available to the respondent in assessing her health that did not involve such an intrusion into her private life. The instructing and undertaking of the surveillance represented an act of victimisation, being unnerving, intimidating and upsetting for the claimant.

Employment Tribunal ruling

It was notable that only 10 of the 40 allegations of discrimination set out in the claimant’s claim were upheld by the Tribunal, although of course 10 discriminatory acts are 10 too many.

It is often the case that an inadequate response to initial allegations of discrimination can lead to a break down in trust and a rapid deterioration in the relationship between an employee and their employer.

Employees may respond by viewing any perceived slight or injustice as possible discrimination. As further complaints are made or grievances raised by the employee, they may be given a less sympathetic hearing by managers who perceive the employee as being a troublemaker who sees unfairness and discrimination where none exists. In such a climate legitimate grievances are at risk of not being taken seriously by employers, who may ultimately make poor choices and/or over-react to any allegations of misconduct made against the ‘troublesome’ employee.

Advice to employers

It is an understandable human response to be defensive when accused of wrongdoing, but employers should at all times seek to consider allegations made against it objectively. Where mistakes have been made they should be acknowledged and apologies should be offered. Here mediation can be a useful tool in re-establishing a working relationship and be more effective than simply apportioning blame and instigating disciplinary proceedings.

It is also an understandable reaction to be ill-disposed towards an individual who has made complaints. However, this instinct places an employer at risk of victimisation claims being pursued at a later date. As challenging as it may be, especially where it is believed that an individual is perceiving discrimination where it does not exist, employers should strive to investigate all complaints diligently and with an open mind.

Should you require any assistance in preparing a suitable workplace policy on discrimination please email us or contact us on +44(0)118 952 7284.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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