Not investigating your discrimination grievance can itself be discrimination
“Failing to investigate a discrimination grievanceA formal complaint raised by an employee against their employer, triggering a legal obligation to investigate and respond. was itself discrimination and victimisationBeing treated badly because you've raised a complaint, supported someone else's complaint, or done something else the law protects, such as raising a grievance or whistleblowing. It is unlawful in its....”
Your employer must actually investigate a grievance that raises discrimination.
- Put any concern about discrimination in writing and keep your own copy, especially if you are worried it might get lost in a wider process like a capability or disciplinary investigation.
- If your employer rejects your grievance for being "out of time" or "not the right process," check whether that rule has been applied consistently and note it down if it has not.
- Get advice early if you believe your grievance was ignored or dismissed without a proper look, since these claims can run alongside, and separately from, whatever the original dispute was about.
The situation
A hospital surgeon, the only consultant of his ethnic background in his department, was restricted from all clinical patient contact for around 20 months while concerns about his conduct and performance were investigated. During that time he raised two formal grievances alleging race discrimination and victimisation. HR rejected the first grievance as out of time under the hospital's own policy, despite accepting it had been raised properly, and neither grievance was investigated. A capabilityOne of the potentially fair reasons an employer can use to dismiss someone, covering situations where you are unable to do your job to the required standard, including through ill health. A fair capab... panel later dismissed him.
What the court found
The Court of Appeal upheld the tribunal's finding that failing to investigate the grievances was direct race discrimination under s.13 Equality Act 2010The main piece of legislation protecting employees from discrimination at work. It covers nine protected characteristics including age, disability, sex, race, and religion, and makes it unlawful for a..., and separately amounted to victimisation under s.27. The hospital blamed a missed deadline in its own grievance policy, but that policy had not been applied consistently before. Once the burden of proofIn a legal claim, whose job it is to prove what. In a discrimination case, once you point to facts that, left unexplained, would suggest discrimination, the burden shifts to your employer to show the ... passed to the employer, it could not point to any real, non-discriminatory reason for refusing to look into what had been raised. The court also upheld the finding of unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi.... The prolonged exclusion from work without proper review was part of what made the dismissal unfair.
Court of Appeal, 2019