The importance of grievance investigations is highlighted by discrimination
finding
A decision of the Employment Appeal Tribunal serves as a chilling warning for employers of the need for appropriate
investigation of grievances. In the case of Bivonas LLP v Bennett it has been decided that the Tribunal were right to work
on the basis that an inadequate investigation was of itself discriminatory, unless the employer could prove otherwise. This
technical reinforcement of the law around the burden of proof in discrimination emphasises the importance of always
undertaking a full fair and thorough investigation.
The detail
While looking through an old file, Mr Bennett (who is openly gay) found a note made by a senior employee of the firm.
This referred to Mr Bennett taking “our cases to his batty boy mate”. The Tribunal found this to be sexual orientation
discrimination even though he was never intended to see the note. They said the words used were a pejorative slur on gay
men and made the suggestion that Mr Bennett was passing work to someone else because they were gay and therefore not
for other meritorious reasons. More importantly, the Tribunal also found the way in which the subsequent grievance
investigation was undertaken also amounted to sexual orientation discrimination. The EAT has agreed that the Tribunal
were entitled to assume that, in the absence of a good alternative explanation, the reason that the investigator had
undertaken a rapid cursory investigation without any notes was because of Mr Bennett's sexual orientation. The facts of
this case were enough to reverse the burden of proof, particularly: the words used in the note itself; the cursory nature of
the investigation and the lack of notes made; and the investigator's conclusion that the writer of the note did not hold
homophobic views based on knowing him for many years.
What does it mean for me?
Fully investigating grievances is important. Tribunals particularly like documents which show them that an investigation
has been undertaken, the process followed, and the time and effort spent. Sometimes a grievance may be felt to have little
merit or the outcome may seem obvious before you start. You may believe you know that this person would never
discriminate or say those words. However where allegations are made which have a discriminatory element, it is very
important that you still follow a full and thorough process and ensure that you can demonstrate that you have done so. If
you do not, you risk your investigation being found of itself to be discriminatory.
Comment
When faced with a discrimination claim, where the burden of proof lies can be very important. Here, instead of the
claimant needing to prove that the investigator discriminated against him because of his sexual orientation (which may
have been difficult), the employer had to prove the poor investigation was for some other reason. Proving why something
has been done badly is often difficult, as it was for the employer in this case. Many of the claims we see allege that
the conduct of an investigation has been discriminatory, because that is why the employee has resigned or due to the
limited time limits for discrimination claims. Making sure you investigation looks fair and thorough is essential to
defending such an allegation.
For further information about Weightmans or to discuss any of the issues in this update, please contact Phil Allen,
Allen, Partner
at Weightmans,
Weightmans, on 0161 214 0504 or [email protected].
[email protected]
Weightmans LLP
February 2012
This update does not attempt to provide a full analysis of those matters with which it deals and is provided for general information purposes only
and is not intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans accepts no responsibility for
any loss that may arise from reliance on the information in this update. The copyright in this update is owned by Weightmans LLP.
Data Protection Act
Pursuant to the Data Protection Act 1998, your name may be retained on our marketing database. The database enables us to select contacts to
receive a variety of marketing materials including our legal update service, newsletters and invites to seminars and events. It details your name,
address, telephone, fax, e-mail, website, mailing requirements and other comments if any. Please ensure you update our marketing team with any
changes. You have the right to correct any data that relates to you. You should contact James Holman, our Data Protection Officer in writing, at
India Buildings Water Street Liverpool L2 0LG.