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Grievances and Discrimination

When an employee raises a grievance, there are a number of things that employers must bear in mind in handling that grievance – from dealing with matters promptly to carrying out a fair and balanced investigation. A recent case highlighted an employer’s shortcomings in dealing with a grievance and the problems that can arise as a result.

Kent Police v Bowler

 Mr Bowler worked for Kent Constabulary from 1993 as a police constable. He passed the sergeant exams in October 2009 and was therefore eligible to apply for any vacancies for the role of sergeant through the constabulary’s promotion board. Mr Bowler gained the necessary experience for a sergeant role in an “acting-up” capacity in 2010 and was praised by his superiors for his performance in that role. In October 2010 he moved to France to work for Kent Constabulary’s Special Branch Frontier Operations at the Eurotunnel and was given opportunities to gain experience that would directly assist in an application for a sergeant role. In November 2011 he was successful in his application for an acting sergeant role at the Port of Ramsgate for 2 weeks.

In December 2011 there was a change in Mr Bowler’s management team and his previous Inspector, DI Shaw was replaced by DI Staddon. Mr Bowler claimed that from this moment on his attempts to obtain promotion were thwarted by DI Staddon and others. On two occasions Mr Bowler was “pocket-booked”, with his manager raising matters relating to his honesty and integrity and alleging that Mr Bowler had lied about his whereabouts. He was also “pocket-booked” for attending a meeting with a Black Police Association Representative, without a manager’s permission. These matters had not previously been raised with Mr Bowler or raised as performance issues.

Mr Bowler raised a grievance alleging bullying and race discrimination. He complained that managers had obstructed his opportunity to gain promotion and questioned his integrity when alleging that he was lying. The grievance was investigated by DCI Somerville, who met with Mr Bowler in April 2014. A follow up meeting was held on 14 May 2014 where DCI Somerville told Mr Bowler that his grievance was unfounded and would not be upheld. He told Mr Bowler that he had quoted the Oxford dictionary definition of racism to the two managers alleged to have committed racist acts and each had confirmed that they were not racist. DCI Somerville had looked at the Race Relations Act but he found it to be convoluted, so resorted to the dictionary. He did not take advice from HR, he had no training in grievance procedures and his Equal Opportunities training had taken place a long time ago.

In October 2014, Mr Bowler was told that he would not be put forward for the role of acting sergeant and would not be put forward for a further 6 months. A manger also placed a restriction on Mr Bowler that he could only speak to officers at French customs with his permission. This restriction was not placed on any other officer.  At Mr Bowler’s performance review, managers made no reference to Mr Bowler’s successful arrests and advised that Mr Bowler “meets role expectations but with some developmental needs”. Mr Bowler claimed victimisation arising from his previous grievance.

Employment Tribunal

The Employment Tribunal concluded that the incompetent handling of the grievance amounted to less favourable treatment on the grounds of race. DCI Somerville was a senior officer with access to professional HR advice. His approach to the grievance demonstrated that he was poorly equipped or that he did not take the grievance seriously or both. It concluded that DCI Somerville had a lackadaisical approach indicating that he held a stereotypical view that Mr Bowler was being over sensitive about being treated badly because of his race and that he would not have treated grievances raised by other officers in this offhand manner.

In relation to Mr Bowler’s victimisation claim, the ET found no other reason for him not being put forward for Acting Sergeant roles other than the previous grievance. The ET concluded that his manager had been “tipped off” about the previous grievance and there was no justification as to why Mr Bowler needed a further 6 months to learn a job that he had been doing for years. Finally, there was no justification as to why he could not visit the French Customs. The ET concluded that this amounted to victimisation.

Kent Constabulary appealed.

Employment Appeal Tribunal

The Employment Appeal Tribunal upheld certain claims of race discrimination and victimisation but rejected others and allowed the appeal.

The EAT concluded that the ET had made an error in concluding that the incompetent handling of a grievance and attitude of the investigator amounted to race discrimination. It said that the incompetent handling of the grievance and the attitude of the investigating officers was unreasonable however; there were insufficient findings to enable the ET to conclude that the investigator held a stereotypical view of Mr Bowler being oversensitive and treating him unfairly because of his race.

The EAT could not reach a conclusion on the facts available to it and, in allowing the appeal has therefore referred it back to the ET.

Conclusion

Employers faced with a grievance should follow their own grievance procedure, together with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

This case shows that it can be difficult for an employee to argue that simply mishandling a grievance amounts to discrimination; however, there are times when an employee can make the link between a protected characteristic, such as race or sex, and the poor way their grievance has been handled. Employers should be mindful of this, ensuring that all grievances are investigated and dealt with consistently and thoroughly.

Where an employee has raised a grievance relating to a protected characteristic, it is particularly important that they are not subjected to less favourable treatment in the future, unless there is a non-discriminatory reason for such treatment.

We will be covering how to handle grievances at our upcoming employment law update seminars starting next week in Cumbria and Lancashire – book now!

If you have questions relating to grievances or discrimination, please call Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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