Discrimination Investigation At Work & The ACAS Disciplinary Investigation Process

Miss Lokhova said she believed colleagues targeted her for harassment at work after she reported a trader for insider dealing, who was later dismissed. Male colleagues commented, amongst others, that she had only been hired ‘because of her tits’ and that she needed to spend time with alpha male Nigerian tribal leaders to help with her stress. Spurious allegations of sexist discrimination followed that she was a drug addict and referred to as ‘Crazy Miss Cokehead’ and ‘Miss Dodgy Septum’.

What made the bullying investigation worse for the bank was that some of the comments and unwanted conduct were made by her manager, some of which he made in emails. Yet even worse, they made comments in emails to clients. Despite Ms Lokhova complaining to her employer about workplace harassment and discrimination, how they had treated her, and the names they had called her, no internal discrimination investigation was carried out by Sberbank. In effect, the bank condoned Ms Lokhova’s colleagues by not disciplining her manager.

There are many occasions where employees are mistreated and discriminated against, including comments made verbally or in writing and insulting pictures sent to colleagues, followed by managers or employers failing to investigate complaints correctly. Still, it doesn’t always have to end in a discrimination investigation and a costly tribunal process. ‘Banter’ in the workplace can often get out of hand, but there are ways to deal with it before it goes too far. Even when someone oversteps the mark, a situation handled correctly can often be resolved.

The first point is to be proactive in avoiding a work investigation, combating discriminatory views and perceptions, and avoiding an ACAS bullying investigation so that employees know how to conduct themselves and the consequences of not acting responsibly.

Having an Equality and Diversity Policy is just not enough. I suggest training staff on this crucial topic when new employees commence employment, followed by periodic refresher training to keep them abreast of the importance of equality in the workplace.

In addition, employers wishing to avoid the need for a work investigation should encourage teamwork and try to combat negative attitudes and comments towards others who are different, for whatever reason. Good working relationships will help minimise the risk of discrimination but will not prevent it.

When there are allegations or complaints of discrimination, you must act reasonably and transparently and try to combat the perceived discrimination. The first step is to commence the workplace harassment investigation process.

You don’t have to wait until there is a formal complaint to begin an investigation at work. Should you be aware of such issues before any formal complaint, I would advise immediately starting an HR harassment investigation. If you receive an email, you can flag the problem to prevent it from escalating. Early intervention could save you from a costly payout later down the line. Ignoring issues and not looking into them will only worsen the situation and not assist in the resolution.

As part of discrimination investigation at work, each witness should be asked to comment, ideally via a face-to-face interview, so that you can ask them reactionary questions to their answers. If this is not possible, ask them what they witnessed, heard or saw, and get a statement from them. It is crucial to do this with each witness. It may take some time, but it is worth it, especially if the matter does progress from a discrimination investigation into an employment tribunal.

It may even be the case during the discrimination investigation process where an employee gets suspended pending investigation. Suspending the complainant, however, is very unusual and not recommended. If the employee is not fit for work because of the discrimination – they are upset, stressed over the matter and off sick – it may be appropriate to pay that employee their full wage instead of statutory sick pay.

If the matter is more complex than first thought after investigating workplace harassment and discrimination, do not hesitate to call Avensure and seek advice before you progress further. Attending your premises and assisting with the process may even be appropriate.

After investigating work harassment and discrimination complaints in the workplace, there could be several options. There may be no evidence to support the allegations or substantial evidence. It is easy to judge the initial allegation/complaint before undertaking the ACAS disciplinary process, but you should judge on all the evidence. From there, you have various options, including issuing a timely apology to the employee who complained, disciplining those who were discriminatory in their actions or words or no action at all.

In addition, involved staff could receive training or be offered re-training on equality and diversity. It can even form part of the outcome of a disciplinary.

After the workplace investigation process, there may be evidence where disciplinary action is necessary. The sanction depends on a variety of issues, such as severity, length of discrimination (a one-off comment made in the heat of the moment and is regretted vs a sustained campaign of discrimination over several months that was calculated and designed to upset the individual or group), effect on the victim, the attitude of the perpetrator as well as what your Equality and Diversity policy defines. The person who chairs the HR work investigation should ideally be different from the person who undertook the investigation.

The aggrieved employee needs to see that justice was done after the work investigation. You can achieve this in many ways. In the most extreme occasions, this may be financial compensation to the employee, but in the first instance, I would say this is rare.

Employers need to handle the matter appropriately. Very importantly, the employees complaining about discrimination and harassment at work should not get treated adversely; they should not be suspended or told to go home. An atmosphere of collaborative working and not penalising employees for complaining is best. Each case depends on the circumstances and facts, but you must handle them sensitively and appropriately.

Employers should not be scared to get involved with a discrimination investigation at work robustly to get to the bottom of the matter. We at Avensure are always on hand to advise and assist if further action is needed. We can even offer training courses, and we will help you through the process.