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 EWCA Civ 1136, Court of Appeal - Ijeoma Omambala
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Preliminary enquiries into allegations that an employee was guilty of serious or gross misconduct were plainly necessary where the complaint was a hearsay report that offensive words had been spoken and a racial disturbance had taken place. Such enquiries were required as a matter of fairness and reasonableness, good employment practice and also by the employer's disciplinary code.
The appellant employee (H) appealed against the decision of the Employment Appeal Tribunal reversing the decision of the employment tribunal, which upheld H's complaint of racial discrimination against the respondent employers (C). H was a solicitor employed by C. She was of Asian origin and of the Muslim faith. On September 25, 2001, two weeks after the terrorist attacks in the United States, H was involved in conversations about those events with members of court staff at Bradford Magistrates' Court. C later received a written complaint that H had made inappropriate, discriminatory remarks that had caused a disturbance between White and Asian youths who had been waiting at court and had overheard the remarks. Disciplinary proceedings were commenced against H and she was suspended from duty. The suspension was later lifted and replaced with a transfer to another office. Before H's claim for discrimination was heard, the disciplinary proceedings against her were discontinued upon receipt of a report commissioned by C that exonerated H of any wrongdoing. At the tribunal hearing, H's main submission had been that C had acted inappropriately and unfairly in proceeding to her suspension without carrying out any preliminary investigation as to whether the allegations against her were true, and that she had been denied advice and representation at her suspension interview. C had submitted that they had merely been following their disciplinary code. The tribunal found that C had acted in breach of its own disciplinary code, had failed to comply with its duty to carry out appropriate enquiries before deciding to suspend H, and that H had suffered a detriment as a result. Further, the tribunal found that C would not have treated a White solicitor in their employment in the same way and thus H's treatment was less favourable on racial grounds and was discriminatory. The EAT held that the tribunal had erred in holding that C had acted in breach of its own code, and that the tribunal had misconstrued the code. The EAT found that such an error of law undermined the tribunal's findings of less favourable treatment and that the treatment was on racial grounds, and it followed that the finding of discrimination could not stand. H argued that the tribunal had not misconstrued the code, that its decision was properly based on findings of fact that were open to it, and that those findings should not be upset by an appellate court. C submitted that the disciplinary code envisaged that suspension could take place before any duty arose on C to make enquiries into the possible misconduct and before H was entitled to advice and representation.
HELD: C's submissions were plainly wrong. Any suspicion that an employee was guilty of serious or gross misconduct had to be based on reasonable grounds. That was a matter of common sense, but it was also made clear by three express provisions of the code. The words of the code were plain and were obviously intended to ensure that the machinery of disciplinary action was not initiated on flimsy grounds. Preliminary enquiries were plainly necessary in H's case where the complaint against her was a hearsay report that offensive words had been spoken and that a racial disturbance had taken place. Such enquiries were required as a matter of fairness and reasonableness, good employment practice and also by C's disciplinary code. The tribunal was clearly entitled to hold that the decision not to allow H advice and representation at her suspension interview was a breach of the code. C's breaches were serious and obvious. The tribunal was entitled to form its conclusions having been unimpressed by C's witnesses. Accordingly, the finding of racial discrimination in H's favour was reinstated.