EMPLOYMENT LAW APRIL 2020
Employment law SOS
This month, our legal expert looks at how to deal with disruptive
employee who is threatening legal action based on his race, and
explores whether regional discrimination is classified as an offence
BY CAROLINE ROBINS, PRINCIPAL ASSOCIATE, EVERSHEDS SUTHERLAND www.eversheds-sutherland.com
We are a small
manufacturer based in
the North-East. We recently
hired a fabricator from Surrey
– the only southerner in a
company made up of dyed-inthe
wool Geordies. At first,
the new arrival was greeted
with friendly ribbing. In recent
weeks, though, it’s got worse.
Comments have been made
about him being a ‘posh boy’
and a ‘toff’ and his accent
has been mocked. Is ‘regional
discrimination’ a legally
recognised offence?
As per the revious answer, racial
discrimination in the workplace
is unlawful. Race in this context
includes colour, nationality and
ethnic or national origins.
Case law has made clear
that ‘national origins’ must
have identifiable elements,
both historic and geographic,
which at least at some point in
time indicate the existence or
previous existence of a nation.
Welsh, Scottish, Northern
Irish and English people often
consider themselves British by
nationality, however as each
of them were once separate
nations, people from these
countries have distinct national
origins which would separately
fall within the definition of race.
However, the law is unlikely to
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In that event, a (fully
documented) investigation
should be undertaken at the
same time into both the alleged
misconduct and the alleged
discrimination, including
gathering evidence and
interviewing witnesses.
If, following the
investigation, there is a
reasonable belief that the
alleged discrimination is
unfounded and the alleged
misconduct did occur, then
the company should proceed
with the disciplinary process
against the employee in relation
to the misconduct, including a
disciplinary hearing (at which
the employee should be given
the right to be accompanied by
a by a fellow worker or a trade
union representative), outcome
and right of appeal.
However, if there is no
reasonable belief of misconduct
based on the investigation,
the disciplinary action should
be discontinued against the
employee. If it is found that any
discrimination has taken place
by the manager, disciplinary
action should then be
considered against the manager.
Particularly as the number
of cases in the employment
tribunals continue to rise
and in view of the costs and
management time in defending
such cases, companies are
often reluctant to take
disciplinary action where
claims are threatened if they
do so. However, the issues are
often unlikely to go away and
have the potential to impact
the workforce more widely.
Therefore, it is important that
issues are addressed as they
arise. Doing so in a fair and
reasonable manner will help
to mitigate any legal risk.
cover more local or regional
distinctions. For example, your
employee is unlikely to succeed
in a claim of race discrimination
on the basis of the region in
England where he came from.
Despite ‘regional’
discrimination not having
any legal basis, employers still
have an obligation to address
incidents that may amount to
bullying. Failure to do so risks
other legal liability and wider
industrial relations issues.
Employers have an
obligation to ensure a safe
work environment, which
includes protecting against any
harm to employees’ mental
health that could be caused by
unacceptable behaviour. Further,
employers have an implied duty
of mutual trust and confidence,
which includes an obligation
to investigate and address
workplace issues. This is the case
even if the employee has not
complained about the behaviour.
Employees who have two years’
service may resign in response
to a failure by their employer
to take appropriate action and
claim wrongful and constructive
unfair dismissal.
In the case of your employee
who you have only recently
hired, he will not have the
required two years’ service
to bring a claim for unfair
constructive dismissal if he
were to resign in response to
the comments being made and
the company’s inaction to date.
Nonetheless, and particularly
given the wider implications
that a humiliating or offensive
workplace environment can
have, it is recommended that
steps are taken in response. This
may include training for your
workforce on discrimination and
appropriate workplace conduct.
A member of our team has
been causing significant
disruption to those around
him with aggressive and
distracting behaviour. This
has been going on for about
six months. However, every
attempt to dismiss him has
seen him threaten to bring
a racial discrimination case
against the company – he
claims his manager is ‘out
to get him’ because he is
black. As a result, our HR
department are reluctant to
do anything about it for fear of
the potential lawsuit, but his
behaviour keeps getting worse.
What can we do?
The employee has made a
serious allegation against his
manager and it is important
that this is investigated in
order to fully ascertain whether
that allegation has any merit.
Whilst your HR department is
reluctant to do anything about
the behaviour for fear of legal
reprisal, it should be understood
that until the allegation of
race discrimination is fully
investigated, it will not be
possible to fairly and properly
address the ongoing alleged
misconduct.
The company has a choice to
make regarding how to address
the issues – either to investigate
the alleged discrimination
first and, if that investigation
finds no discrimination or
no link between the alleged
discrimination and conduct
issues, then move on to
address the conduct issues; or
to undertake both processes
concurrently.
In order to avoid any delay in
dealing with overlapping issues,
many employers choose to deal
with the issues concurrently.
14 www.manufacturingmanagement.co.uk
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