We recently recruited a young black man. We suspended him without pay after we heard reports from other trainees that whilst in their induction he was supplying drugs to other recruits. His Manager investigated, as he claims to have a zero-tolerance approach. He also said to me privately that young black men can be a problem because of their association with gang culture. He established that they were just over the counter caffeine supplements (presumably to stop people falling asleep during induction training), but had not decided what to do next. The investigation was neither thorough nor professional. The young man resigned because he was reluctant to return to work with his ‘detractors’, or with Senior Managers who he claimed had deliberately omitted, or falsified information to harm his career, and had conducted a ‘witch-hunt.
‘Smart drugs’ – performance enhancers – which may or may not have been legal, are nevertheless a social problem. However, linking that to particular ethnic groups is dangerous, and potentially could lead to a Tribunal ruling that he had been racially discriminated against by his former employer.
Proving unlawful discrimination presents particular evidential problems, as it is unusual to find explicit evidence of unlawful discrimination. As Lord Browne-Wilkinson put it in Glasgow City Council v Zafar in 1998: “those who discriminate on grounds of race or gender do not in general advertise their prejudices: indeed, they may not even be aware of them.”.
In the absence of a rigorous investigation, so having little firm evidence and no clear evidence of wrongdoing, there is every likelihood that this will be seen as “a mask for speculation, inuendo and prejudice.”
Suspending employees without pay is unusual, and needs to be justified. You might have got away with it in view of the short service, but compounding the decision with a ‘deeply flawed’ inquiry adds insult to injury.
If the Manager was the right person to investigate, which I doubt, then the first thing he should have done was clarify the precise allegations against the employee, and whether the drugs in question were, in fact, illegal. If the drugs were not illegal, then the investigation should have continued down a very different route.
An Employment Judge may well determine that he was subject to suspension, investigation and threat of an unjustifiable disciplinary hearing in circumstances under which no white comparator would have faced the same. If your Manager was determined that the employee was up to no good, even if the evidence would not support this, then you are on weak ground, and his prejudices are likely to be exposed at Tribunal.
The Tribunal is likely to award him a substantial sum – compensation for injury to feeling, loss of earnings and an additional ACAS uplift of up to 25%. This is because many claims for unfair dismissal and discrimination succeed because of flaws in the investigation process. These can range from a simple misunderstanding of the investigator’s role to a proper investigation not taking place, due to a lack of time, skills and resources of the employer. Employers should construct an investigative plan if preliminary findings indicate a possibility of race discrimination. This involves identifying witnesses, including the accused employee, and gathering evidence, such as employment records, to consider during the investigation.
If you cannot persuade him to return to work, then you probably ought to be offering a settlement agreement to avoid a difficult and expensive time at Tribunal. You also need to deal with the Manager so that he ceases to be a liability.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.