PC Carol Howard, a black female firearms officer, has recently been awarded £37,000 by an Employment Tribunal (ET) after winning a race and sex discrimination case against the Metropolitan Police (Met). In the Tribunal’s damning judgment, Scotland Yard was branded “malicious” and “vindictive” in its treatment of PC Howard and the Tribunal recommended that the Met appoint an independent figure to carry out a full review of its internal complaints system. Specifically, the Tribunal heavily criticised the way the Met’s grievance procedure had been implemented, deeming the Met’s refusal to consider findings of discrimination to be “appalling and wholly unacceptable” for any employer, “let alone a large public sector employer”.
The Tribunal found that Acting Inspector Dave Kelly had “singled out and targeted” PC Carol Howard for almost a year and had embarked on a course of action that would “undermine, discredit and belittle” her. This course of action included instructing colleagues to quiz her about her sex life and whether she was sleeping with a colleague, sending marked police cars to her home, unnecessarily booking her for extra training, ordering officers to investigate any illnesses and blocking her application to join the Met’s elite armed response unit CO19.
In a statement, Howard said: “I have been put through a two-year ordeal in which I have been bullied, harassed and victimised simply because of my gender and race and the only reaction from the police was to smear my name by releasing misleading details of my arrests”. She continued “It saddens me that I found myself in this position through no fault of my own but I do hope that lessons can be learned from my case which will allow more officers, suffering similar discriminatory treatment, to come forward.” The Met responded saying it would not tolerate discrimination and that it had commissioned an independent review of its internal policies.
The Howard/Met Tribunal judgment came as a huge blow to a force which, in 1999, had been labelled “institutionally racist” by the MacPherson Inquiry in the fallout of the murder of Stephen Lawrence and one which has since made great efforts to rid itself of this label.
So how can discrimination manifest in the workplace, how can employers guard against its effects and how should businesses respond when signs of discrimination at work emerge?
Types of discrimination
In the UK, all employees are legally protected from discrimination (direct and indirect) on the grounds of a “protected characteristic”, as well as harassment and victimisation, under the Equality Act 2010. Protected characteristics include race, sex, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief and sexual orientation.
The protections, outlined below, apply from the recruitment stage through employment to dismissal and in some cases post-termination:
Direct discrimination is treating someone less favourably than another person because of a protected characteristic (in PC Howard’s case, race and gender) they have or are thought to have (perceptive discrimination), or because they associate with someone who has that protected characteristic (associative discrimination). An employee who claims direct discrimination will have to show that they have been treated less favourably than a real or fictional person whose circumstances are not materially different to theirs. Direct discrimination cannot be justified by an employer except in relation to age.
Indirect discrimination is where an employer adopts a provision, criterion or practice (a “PCP”) which appears to be neutral but in reality disadvantages people with a protected characteristic. An example would be a scheme whereby all employees received a bonus if they took part in the London Marathon, indirectly discriminating against both those with disabilities and pregnant employees. It is possible for an employer to defend a claim if it can show that the PCP is a proportionate means of achieving a legitimate aim.
Victimisation is treating a person poorly because they have made, or people think they have made, a complaint about discrimination or have given evidence in a discrimination case.
Harassment is unwanted conduct related to the individual’s protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
Impact of discrimination
In the aftermath of her Tribunal hearing, PC Howard spoke of her desperation to avoid her perpetrator in the workplace, describing how she would hide in a locker room for hours to avoid him and even entered the building through a window to avoid walking past his office. She said “I felt like he was trying to break me as a person”. “I started to doubt my own ability because he was making me look incompetent. That spiralled into my personal life. I wouldn’t sleep, I had trouble eating, I lost weight. I realised I didn’t want to be at work because he was making my life really, really miserable.”
Employers who fail to guard against, recognise, and properly deal with discrimination in the workplace do so at their peril. As well as the significant damage to public reputation which can follow a finding (or even allegation) of discrimination, failure to recognise and effectively deal with discrimination can have a detrimental impact on staff morale and dramatically increase sickness absence rates and staff turnover. News of discrimination and internal failure to deal with discrimination can spread quickly, potentially hampering future ability to recruit (especially if sex and/or race discrimination is reported as an issue within the organisation) and, of course, potentially leading to tribunal claims.
In explaining the compensation awarded to PC Carol Howard, which included aggravated damages, the Tribunal pilloried the Met for its response to the negative coverage the case had attracted. This response included the release of her arrest information to the media. Whilst the Met defended its actions stating that it was being open and transparent, the Tribunal said that the Met’s pattern of behaviour, which was widely reported as a smear campaign against PC Howard, was “insulting, malicious and oppressive”.
Fairness at Work Procedure
In the course of the Howard/Met tribunal proceedings, the Tribunal heavily criticised the implementation of the Met’s internal grievance procedure. In particular, the Tribunal found that the Met had a “policy” that led it to remove findings of discrimination or harassment (as the Detective Sergeant tasked with addressing the Fairness at Work complaint had been asked to delete references to discrimination and harassment relating to gender or race in the subsequent report in to the matter).
The Tribunal stated it was “very concerned the [Met’s] policy of not allowing Fairness at Work Advisers to make assessments of discrimination and of instructing to delete them when they do so, might mislead complainants and tribunals into believing that the [investigating officer] has not found any discrimination when in fact he or she has done so”. It was concluded that an independent review should be undertaken and a re-examination should be carried out to assess how grievances had been handled since 2009.
Dealing with grievances – best practice
The ACAS Code sets out clear recommendations for employers when dealing with a grievance. As well as making grievance procedures as transparent and accessible to employees as possible, the Code recommends that:
- Managers should be encouraged and trained to resolve issues pro-actively and informally in so far as this is possible.
- On receipt of a written grievance, an employer should hold a meeting with the employee who has raised the grievance. At the meeting, the employee should be encouraged to explain their grievance and discuss how they think it should be resolved.
- The employer should consider whether further investigation is appropriate, if necessary adjourning the meeting and resuming it once a detailed investigation has been undertaken.
- The employee should be advised of their right to bring a companion to the meeting (either a fellow employee or a trade union representative).
- The employer’s decision should be communicated in writing to the employee without unreasonable delay. This may include (where appropriate) providing details of any action the employer intends to take to resolve the grievance.
- The employee has a statutory right to appeal. When communicating the decision, the employer should inform the employee of this right and provide details of the appeal process that will apply if they are not satisfied with the outcome of their grievance. Any appeal should be dealt with impartially at a hearing and ideally conducted by a manager or senior figure which has not yet been involved in the matter. Again, the employee is entitled to bring a companion and the employer should communicate its final decision in writing without unreasonable delay.
Dealing with disciplinary issues – best practice
Grievances relating to allegations of discrimination can often go hand-in-hand with the commencement of disciplinary proceedings against the perpetrators, which are also covered by the Code. As above, disciplinary procedures should be readily accessible to employees and the Code advises an employer to:
- Fully investigate the issues – this can include carrying out investigatory meetings with the employee under investigation and/or collecting other evidence such as witness statements from other employees.
- Inform the employee of the issues in writing – if there is a case to answer and detail the possible consequences i.e. risk of dismissal. The employer should also stipulate the time and place of the disciplinary hearing or meeting.
- Hold a disciplinary hearing or meeting – at which the employer should explain the nature of the allegations and analyse the evidence before it. The employee should have a chance to put forward their response to the allegations which can involve calling witnesses or presenting other evidence.
- Inform the employee of the decision in writing – the employer should set out its decision following the hearing or meeting without unreasonable delay. This may take the form of a confirmation of no case to answer, a written warning, a final written warning or perhaps dismissal depending on the nature of the issue and if any past conduct is relevant.
- Allow the employee to appeal. Again, any appeal should be conducted as soon as practicable and preferably by a manager or senior figure who has not previously been involved.
Why is it important to follow the Code?
While an employer’s failure to follow the Code does not of itself give rise to a breach of an employee’s legal rights, it must be taken into account by a Tribunal where relevant (such as when determining whether a dismissal is unfair). Unreasonable failure to follow the Code can also lead a Tribunal to adjust the amount of compensation payable to the employee e.g. up or down by 25%.
With this in mind, grievance and disciplinary policies should be carefully tailored to the business of the employer and of its clients where possible and appropriate, as well as complying with the provisions of the Code. Giving clear examples of what constitutes gross misconduct, including making clear that discriminatory conduct will not be tolerated, will help to minimise the risks of discrimination in the workplace, as well as strengthening the protections available to the employer when contemplating dismissal.
The Tribunal’s unabashed condemnation of the Met’s failings in the case of PC Carol Howard serves as a stark reminder for all employers to ensure that they have in place effective policies and processes for dealing with grievances and disciplinary issues in the workplace. It also highlights the importance of ensuring that all policies are fully accessible to employees, regularly updated, effectively implemented and adhered to consistently and with integrity.
Article by Felicity Staff (Associate) and Tom Avis (Trainee Solicitor), Employment & Pensions, Charles Russell LLP