How do you manage equality in a disciplinary and grievance process?

Date Added 24.03.22

Carrying out a fair process when it comes to handling a disciplinary matter, or a grievance is key. But what about when an employee has a protective characteristic, either one that you are aware of, or should be aware of? It is important that a fair process looks at whether or not there are any protective characteristics that need to be considered and employers must ensure that they are handled fairly and sensitively so as to avoid a discrimination allegation or claim.

The law on equality provides a list of legally protected characteristics, these are:- age, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, disability, race, religion or belief, sex and sexual orientation. To promote equality is to ensure that individuals or groups are not treated any less favourably to their peers as a result of their protected characteristics.

As an employer it is important to create an inclusive workplace environment for employees. This will help employees to feel valued alongside their peers, regardless of any differences or disadvantages there may be. This can and should also include the way in which an employer implements its policies and procedures.

What does this mean in practice?
Disciplinary Process:

Disciplinary issues usually arise as a result of misconduct and poor performance. Whilst some issues may be minor and resolved informally, it is important that employers understand their duties when dealing with a formal disciplinary process and to ensure that it is carried out in accordance with the necessary guidelines, internal procedures and current legislation.

Throughout the disciplinary process, particular attention should be given to any protected characteristics, or potential protected characteristics, which may be apparent or could be relevant. For example, if an employee is being disciplined for poor performance, consideration should be given as to whether there is a potential or actual disability that could account for that poor performance. If so, a sanction that fails to address that, could amount to a discrimination claim. An employee may be being harassed for a reason relating to a protected characteristic, such as sex, or race or religion and that might have had an impact on their performance or conduct.

An employee may also need adjustments making to enable them to participate in the process so that they are not placed at a disadvantage. This can include but is not limited to, holding the meetings out of the office (especially in situations where allegations of bullying or harassment have been raised, or the employee is unwell), allowing enough time between meetings, or allowing the employee options to put their case in writing and/ or face to face.

Grievance Process:

The right to raise and seek redress of a grievance is implied into an employment contract. Grievances are used by employees when they wish to raise a concern, problem or complaint with their employer. It is important for employers to deal with grievances with care and to ensure that matters are resolved as soon as possible and in accordance with guidelines. Often grievances will make reference to discrimination allegations.

Moving forward with any grievances will require application of a fair and proper process throughout the investigation, hearing and decision-making stages. Failing to do so could mean that the employer has applied an unfair process which would likely open the door to potential legal action. Dealing with discrimination allegations is a sensitive issue. Bear in mind that the employee raising the grievance will need to be shown empathy and respect and employers should be open-minded, as what is perceived to be discrimination can be subjective. As a consequence, the way in which an employer carries out a grievance may lead to a discrimination claim, if for example, the employer can’t show that they didn’t adequately consider the allegations.

As with dealing with disciplinary processes, it is important to make any reasonable adjustments to the process so that it can be carried out fairly and that the employee feels comfortable. When dealing with the grievance process, management should be cautious not to further aggravate the employee by being insensitive, uncooperative or unaccommodating.

What does this mean to you?

It is strongly recommended that employers look at the work environment to ensure that rules and expectations are clear to all employees. This will assist employers when enforcing rules and standards and should create a fair and consistent approach. These processes and practices should not be discriminatory in any way and should be continuously reviewed to reflect ongoing efforts to promote equality and inclusion within the workplace.

How can we help?

As a business, it is necessary to ensure that policies, practices and procedures are continuously reviewed and updated to ensure that the business is prioritising equality and inclusion but also to ensure that when difficult situations arise, such as grievances and disciplinaries, they are handled correctly.

At Tollers, we can assist with reviewing your policies and procedures to give you confidence that they are in line with current guidelines and legislation. We can also advise you on any specific issues in respect of disciplinaries and grievances and conducting a fair process.

If you have a question or would like further information on how we can help… Talk to Tollers on 01604 258558. Our Employment team is on hand to assist you with all you need to know. We’re here for you.

More about Employment discrimination can be found here…

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