How to investigate discrimination in the workplace
When discrimination occurs in the workplace you don’t want to be hit with a £3.2 million compensation bill, as a Sberbank CIB (UK) Ltd were recently. An employment tribunal concluded that the bank’s employee, Svetlana Lokhova, was bullied, harassed and victimised on grounds of sex by her manager.
Miss Lokhova said she believed she was targeted by colleagues 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 go to spend time with alpha male Nigerian tribal leaders to help with her stress. This was followed by spurious allegations amounting to sexist discrimination that she was a drug addict and referred to as ‘Crazy Miss Cokehead’ and ‘Miss Dodgy Septum’.
What made it worse for the bank is that some of the comments were made by her manager; some he made in emails. Yet even worse, some comments were made in emails to clients. Despite Ms Lokhova complaining to her employer about the way she was treated and the names she was called, there was no internal investigation into her complaints. In effect, the bank appeared to condone Ms Lokhova’s colleagues by not disciplining her manager.
There are many occasions where employees are discriminated against, including comments made verbally or in writing, insulting pictures sent to colleagues, followed by managers or employers failing to investigate complaints properly, or at all, but it doesn’t always have to end in 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 does overstep the mark, a situation that is handled correctly can often be resolved.
Learning Points for Employers
The first point is to try to be proactive about the situation and combat discriminatory views and perceptions so that employees know how to conduct themselves, and the consequences for not acting responsibly.
Having an Equality and Diversity Policy in itself is just not enough. I would suggest training staff on this crucial topic when new employees commence employment followed by a periodic refresher training to keep them abreast of the importance of equality in the workplace.
Avensure can help you with e-learning courses as well as policies for such situations
In addition, employers should encourage teamwork and try to combat negative attitudes and comments towards others who are different, for whatever reason. Good working relationships will help to minimise the risk of discrimination but will not prevent it totally.
When there are allegations or complaints of discrimination you must act and act in a way that is fair, transparent and tries to combat the perceived discrimination. The first step is to investigate.
You don’t really have to wait until there is a formal complaint of discrimination. Should you be aware of such issues pre any formal complaint, I would advise immediately investigating. If you are the recipient of an email, you can flag up the issue to stop it escalating. Early intervention could save you from a costly pay out later down the line. Ignoring issues and not looking into them will only make the situation worse and will not assist the resolution.
As part of a thorough investigation, 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 and every witness. It may take some time but it is worth it, especially if the matter does progress to an employment tribunal.
It may even be the case where an employee is suspended pending investigation. Suspending the complainant however is a 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 as opposed to statutory sick pay.
If on investigation the matter is more complex than first thought then do not hesitate to call Avensure and seek advice on the matter before you progress further. It may even be appropriate that we attend your premises and assist with the process.
After the investigation, there could be several options, there may be no evidence to support the allegations or there might be substantial evidence. It is all too easy to make a judgement on the initial allegation/complaint but you should make a judgement 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, staff who are involved could be trained or offered re-training on equality and diversity. This can even form part of the outcome of a disciplinary.
Should there 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 moment and is regretted vs a sustained campaign of discrimination over a number of months that is calculated and designed to upset the individual or group), effect on the victim, attitude of the perpetrator as well as what your Equality and Diversity policy defines. The person who chairs the disciplinary should ideally be different from the person who undertook the investigation.
The employee who is aggrieved needs to see that justice is being done. This can be achieved in many ways. In the most extreme occasion this may be financial compensation to the employee, but in the first instance I would say this is rare.
Employer’s need to handle the matter appropriately and very importantly the employee who makes a complaint about discrimination they receive should not be 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 they need to be handled sensitively and appropriately.
Employers should not be scared to get involved with matters and investigate robustly to try to get to the bottom of the matter. If further action is needed, we at Avensure are always on hand to advise and assist. We can even offer to provide training courses and we will help you through the whole process.
For more information about me, come see my profile: Andy Mills