What's happening and what does this mean for you?
If an employer is looking to dismiss an employee (or cease using a worker) they may consider that there’s little risk in using a shortened procedure.
However, a claim that the dismissal was motivated by unlawful discrimination or because the employee blew the whistle or raised concerns can find managers in front of an employment judge trying to explain what was in their mind at the time.
In a claim of discrimination, if the claimant can evidence an apparent difference in treatment or inexplicable features of how things were handled, the burden of proof shifts to the employer to demonstrate that the dismissal was for a non-discriminatory reason. An employer who didn’t keep records or delve to at least some extent into what happened may struggle to, in effect, prove a negative at this point.
Mr Bonsu was a care worker who performed casual shifts in a support setting. There was a complaint, allegedly supported by several other witnesses, that he had treated a vulnerable service user poorly, denying him the dignity of choice and trying to coerce him.
Although Mr Bonsu was not an employee of the care setting and could simply have been denied further shifts without explanation, the business decided to invite him to what it called a fact-finding meeting. They did this despite being already fairly convinced of his guilt.
The meeting did not go very well. The manager had formed an opinion of Mr Bonsu’s cuplability largely on the basis that he implicitly trusted the judgement of the person who had reported the incident. Although Mr Bonsu offered an apology during the meeting, he mostly doubled down on his denials and failed to demonstrate that he would learn anything from what had happened or modify his approach. The manager wrote to his own seniors afterwards recommending that Mr Bonsu not be used for shifts in future. They wrote back, concurring.
A further meeting to give Mr Bonsu this outcome was held the following week. Mr Bonsu said that his ‘dismissal’ was motivated by his race and suggested in support of this belief that other casual workers had been treated more favourably.
Since he was not an employee he was, of course, unable to bring a claim of unfair dismissal, but he did claim that he was treated less favourably on grounds of race on three counts: the decision to investigate, the decision not to use his services further, and finally the way the investigation was conducted.
By a majority decision the Tribunal found in his favour on the third ground. The fact-find had not been even-handed, and the concerns raised by the claimant in the outcome meeting were largely ignored. The tribunal found that this amounted to the ‘something more’ necessary to transfer the burden of proof to the respondent to show that its actions were for another, non-discriminatory, reason. In the tribunal’s view, they could not.
Stockport Metropolitan Borough Council appealed and won. The judge concluded that the scope of the investigation and how it was conducted applied to the entire process from the report to the outcome conversation. The non-discriminatory reason which the respondent had established lay behind the ‘dismissal’ itself could not logically be untangled from the process accompanying it.
If you decide to end an arrangement with a worker, or dismiss an employee with less than two years’ service, don’t fall into the trap of thinking you can act with impunity in all cases. This is all the more important if, like, the claimant in this case, they raise contentious issues about underlying motivations.
While a drawn-out process is not necessary, employers are advised to give some thought to the circumstances – if you believe one person’s account over the other’s, why is that? Can you demonstrate that others in similar situations have been treated consistently? If the worker raises complaints about what they believe to be the reason for their treatment, don’t ignore this and keep records of what you did to look into it. It will stand you in good stead if you have to prove why you acted as you did.
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