Employers should be familiar with and understand the importance of carrying out a proper investigation if they are considering taking disciplinary action against an employee. Employers should also understand the need for a proper process to be followed and the right of the employee to make representations in subsequent proceedings. However, when considering whether to take action and what sanctions (if any) to impose on an employee, managers and business owners must not lose sight of the risk of potential discrimination issues that could arise during the process.
This was demonstrated in a recent case where an employee was issued with a final written warning, having refused to obey a lawful instruction to change the location within the workplace in which they worked, on the basis they believed that it would exacerbate a disability (osteoarthritis) they had. The employer carried out an investigation and came to an objective conclusion that the change in location within the workplace was no different. In other words, the working environment was the same throughout the workplace. However, the employee’s belief that this was unfavourable treatment as a result of a disability was found to be erroneous.
Following an internal appeal to the final written warning, the employee had their sanction downgraded to a written warning. That did not stop the employee issuing employment tribunal proceedings claiming disability discrimination on the basis that the employer had treated them unfavourably due to something arising as a consequence of their disability. In the Employment Tribunal, the employer was unable to demonstrate that this could be objectively justified.
The Employment Tribunal found that the employer had indeed discriminated against the employee by issuing a disciplinary sanction as a result of the employee refusing to move the location of where they worked within the workplace. This was despite the fact that the employee was incorrect in their assertion that such a relocation would have a grave effect on their condition.
The employer appealed this decision and was successful. The Employment Appeals Tribunal found that there was no connection between the employee’s disability, the employee’s belief that the change in location within the workplace would exacerbate their condition, and their refusal to obey a lawful instruction.
This case is in contrast to a situation where an employee refuses to work with a new team or undertake different work functions due to their judgment being impaired as a result of stress, which could derive from depression or pain suffered from a disability. In this type of scenario, the erroneous belief arising from the disability leading to an instruction not being obeyed and, therefore, a disciplinary sanction, could result in it being found that unfavourable treatment has been committed by an employer, which amounts to disability discrimination.
Therefore, at each stage of a disciplinary procedure (especially at the investigation stage), consideration should be given to any existing disability of an employee that may influence the way in which they conduct themselves. Employers should also think about how much weight needs to be given to this in deciding how best to deal with such an issue.
Finally, it is worth noting that compensation for discrimination is potentially unlimited. As such, taking the time to consider any discriminatory issues that could arise at the point of investigating alleged misconduct – and seeking professional legal advice – may save employers from hours of management time in dealing with grievances and legal fees, and defending future tribunal claims.
If ever you are unsure of how best to proceed in this case, you can trust in the respected skills and knowledge of employment solicitors familiar with the running of a dental practice. Goodman Grant, for instance, understands how stressful and disruptive disputes with employees can be, and is committed to finding a fair and practical solution that satisfies all parties involved. Having advised clients across the dental sector for over 30 years, the professional team will take a robust approach to protect your position with regard to achieving a satisfactory resolution.
In order to protect your business in instances where you are considering taking disciplinary action against an employee, it is important to adhere to the most appropriate procedures. Without doing so, employees can make claims for disciplinary cases, which could put your business at the centre of an expensive and time-consuming tribunal case. Be sure to seek reliable legal support to minimise this risk.