23rd March 2017

Discrimination:  Incompetent investigation invites incorrect inferences  

In the case of The Chief Constable of Kent Constabulary v Mr A Bowler the Employment Appeal Tribunal (EAT) considered an issue that we regularly witness, where a poorly handled grievance investigation evolved into allegations of discrimination about the investigation process itself.

Background

The Claimant was a highly experienced Police Constable. He enjoyed a successful career but alleged that promotion opportunities were unlawfully thwarted after new managers came in in late 2011.

The Claimant raised a grievance which was investigated by a senior colleague who had not conducted any investigations previously. The grievance and the subsequent appeal were not upheld and the Claimant went on to bring claims of direct race discrimination and victimisation, citing numerous allegations.

The Tribunal found in favour of the Claimant. One of the Tribunal’s key findings was that the grievance investigation was so poor and ‘lackadaisical’ that it could be inferred that the Investigating Officer had been tainted by a ‘stereotypical view of race complainants’.

The Kent Constabulary’s appeal to the EAT was upheld in part and returned to the Employment Tribunal to reconsider those elements. On the issue of drawing inferences from the investigation report, the EAT concluded that whilst the investigation report was very poor, there was insufficient evidence to conclude that the Investigating Officer had adopted a discriminatory stereotypical view of the Claimant.

Lessons Learned from the Case

Whilst the EAT has returned parts of the case to the Employment Tribunal, this case goes to show the importance of conducting thorough investigations with well-reasoned findings, particularly when discrimination is alleged.

Where grievances are not properly investigated it can lead to allegations of discrimination. Moreover, where a grievance is not thoroughly and fairly investigated it can amount to a repudiatory breach of contract which can entitle the employee to resign and claim constructive unfair dismissal.  All of this in turn can expose organisations to large liability for compensation, legal costs, and organisational disruption in dealing with the fall out.

Here at the By Design Group we specialise in carrying out complex investigations on behalf of our clients, and all of our work is quality assured by solicitors. We also provide training for employers who carry out investigations in-house.

If you think that your company would benefit from investigation training, or if you would like to find out more about our investigation services, please contact sue.morrison@lawbydesign.co.uk or nick.grimshaw@investigationsbydesign.co.uk