Mr Bowler was a long serving employee who had worked for Kent Police since 1993. He had been promoted and had a good working relationship with his supervisor. After his supervisor was replaced by another officer in 2011, Mr Bowler alleged that his new supervisor and other members of staff repeatedly denied him opportunities for promotion, undermined his work and generally treated him less favourably than his colleagues because of his race.
Eventually, Mr Bowler raised a grievance which was handled in a poor manner. The investigating officers did not treat his allegations seriously and in June 2014 he was informed that his grievance appeal had not been upheld. Mr Bowler alleged that the attitude of the investigating officers was even further evidence of his less favourable treatment due to his race.
Mr Bowler successfully brought claims in the Employment Tribunal for direct race discrimination and victimisation. Part of his complaint was that his grievance and appeal had not been treated seriously and that consequently he had been subject to discrimination on the grounds of his race. The investigation officer had told Mr Bowler that “he had quoted the Oxford dictionary definition of racism to the relevant officers and they had all confirmed they were not racist. He confirmed that he had not taken advice from HR about the nature of the grievance but had looked at the Race Relations Act, found it convoluted and so resorted to the dictionary”.
The Employment Tribunal concluded that the “lackadaisical approach indicated that [the investigation officer] DCI Somerville held a stereotypical view that Mr Bowler was being over sensitive about being treated badly because of his race.” Kent police appealed to the EAT.
The EAT acknowledged that Kent Police had been incompetent and “lackadaisical” in handling the grievance. However the burden of proof was still on the Mr Bowler to show that there had in fact been discriminatory behaviour.
The EAT made the point that there were no adequate facts or evidence from which an inference of race discrimination could have been drawn. Therefore the Tribunal had made an error in law concluding the complaint of race discrimination had been established by Mr Bowler.
Justice Simler in the Judgment stated “it is a sad fact that people often treat others unreasonably, irrespective of race, sex or other protected characteristics”.
What does this mean for you or your business?
This is a good case for employers. It confirms that it is not sufficient for employees to “throw the race card” at employers without foundation. The case illustrates unreasonable conduct (i.e. a poor grievance process) alone is not enough to prove that the treatment complained of amounts to discrimination.
This case also demonstrates that if your business has a grievance process then you must follow it. Whilst the burden of proof is on employees to prove their discrimination claim at a tribunal, it is not an excuse to have a poorly handled grievance procedure. Employers must always act reasonably and follow that grievance process.
What should you be doing now?
We find that many managers that are tasked with handling a grievance are not aware of what they have to do. Employers should ensure that all grievances are investigated and dealt with consistently and thoroughly. Therefore follow your own grievance procedure together with the guidance from ACAS Code of Practice on Disciplinary and Grievance Procedures . Keep clear records of any evidence which show the real reason for the treatment.
In this case the investigation officer had not had any training nor had he taken advice from his HR department. He looked up the word ‘discrimination’ in a dictionary. Tribunals will be very unimpressed by this sort of conduct. Whilst the investigating officer had attended Equal opportunities training it was many years ago and outdated.
Businesses should ensure that employees conducting grievances are given guidance and equal opportunities training and that the training is regularly updated. Employers should also keep records of equal opportunities training as it will be important evidence if faced with a discrimination claim at Tribunal.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.