You will have seen in the press recently reports of a number of discrimination claims brought by employees whilst they remain in employment. In particular, the Metropolitan Police has faced claims by a number of employees, including Tarique Ghaffur, Yasmin Rehman and Shabir Hussain.
Various commentators in the media have expressed surprise that these people can sue their employer for discrimination whilst still in employment. The rationale for this is, of course, that it is bad enough for an employee to suffer discrimination at the hands of their employer. It would be wholly unfair to compound their misery by making them leave their employment simply in order to pursue their claim for discrimination.
However, this inevitably makes life very difficult for the employer. It will be faced with a disaffected employee whom it will have to pay in the normal way but who may not be working hard for the employer, who may spend a significant part of their working hours and their energy dealing with their case and who may be disruptive and be encouraging others to take a negative view of management.
The key trap for employers is finding themselves facing an additional claim of victimisation as a result of how they have treated the employee after his or her complaint has been made. Victimisation occurs when an employee is treated less favourably because he or she has complained about discrimination, whether by bringing a claim or by making a complaint (formal or informal) about discriminatory treatment.
Therefore, if you are an employer with a member of staff currently claiming discrimination against you, here are a few top tips:
• Do try to treat the employee concerned in the same way as he or she would have been treated had they not made a discrimination claim. That doesn’t mean ignoring the fact of the claim but you shouldn’t base decisions about the employee, e.g. promotion, payrise, bonus, content of the performance review on this fact.
• Do be very careful what you say about the claiming employee to others and who you say what to. Flippant remarks can be held against you and comments made confidentially can have a nasty habit of being repeated;
• Do not permit other staff to create an unpleasant working atmosphere for the employee. Make sure managers are told to look out for this and that they take action to stop it if the claiming employee complains or they spot it going on. This might be done informally but the disciplinary process should be used if the offending behaviour continues;
• In the same vein, do not permit the employee to suffer reprisals from other employees;
• Take great care committing any views about the employee in writing. Emails are a weak spot for any employer – they are disclosable in tribunal proceedings so never say anything derogatory about the employee in an email and warn relevant mangers that they should avoid this;
• Do not suspend the employee from work unless it is absolutely necessary as this itself may give rise to a further complaint. This is possibly justifiable where the employee in question is Assistant Commissioner of the Metropolitan Police (as was the case with Mr Ghaffur) if it makes it very difficult for the organisation not function with the employee in the workplace or there is fear for the safety of the employee brining the claim. You can give the employee the option of staying away but you would need to continue paying him or her. Given delays in some tribunals you could be paying a significant sum for no return.
• Do not dismiss or discipline the employee as a result of the claim. That does not mean you can’t take any management action against the employee, for example, making them redundant or disciplining or performance managing them but you need to ensure that you have a paper trail to show that these decisions are not driven by the fact of the claim;
• Do not refuse to give a reference if the employee leaves your employment. This in itself could amount to discrimination;
• Do not seek to pressurise the employee into settling his or her claim.