11th December 2017

Non Decision-Maker’s Discriminatory Influence May Result In Them Being A Joint Decision-Maker

According to the EAT (Employment Appeal Tribunal) in the case of Metropolitan Police v Denby, where another person influences a decision-maker in a discriminatory way, this may result in them being a joint decision-maker.

Background

The Claimant, Mr Denby, was a male police officer in charge of the Territorial Support Group. A new Deputy Assistant Commissioner (DAC), Maxine De Brunner, was brought in to drive discrimination out of the police service. The DAC also had concerns surrounding the lack of gender diversity, within the group led by Mr Denby.

The first complaint occurred during a surprise visit in 2014, during which the DAC witnessed a male officer walking from the shower across the office in just a towel, in what she described as her “pet hate”. When this was raised with Mr Denby, he simply informed her that officers had to walk from the showers to their lockers. Following this incident, Mr Denby was subsequently placed under investigation and fresh allegations were brought against him. This included finding beer for sale in the fridge and allowing staff to claim for overtime not actually worked.

Employment Appeal Tribunal Findings

The EAT found this response to be heavy handed when compared to similar complaints about a group led by a female officer. Whilst the DAC allowed the female officer to be investigated locally, in this case, she influenced the decision of another officer to subject Mr Denby to a criminal investigation. The Tribunal also found that the DAC and Commander Musker had influenced earlier decisions, by preventing certain restrictions of his duties from being lifted.

Further to this, a new system was introduced scoring officers on their performance and potential. Mr Denby received a B3 score with positive narrative comments. However, this was reduced to B1, the largest drop of any employee, by Commander Musker. This subsequently prevented him from successfully applying for a promotion, when the earlier comparator had been allowed to do so. Mr Denby’s internal appeal was rejected, in what the Tribunal called “a rubber-stamping exercise”.

Best practice in dealing with any disciplinary process is to ensure that a clear, consistent and fair process is carried out. Where the process is not consistent across the business, this increases the risk of potential discrimination claims. In addition, it is vital to ensure that where possible each step of the process is undertaken by a different, ideally more senior, person who has no earlier involvement in the matter. Where an employee appeals an earlier decision, the person hearing the appeal should be independent from the earlier process and the decision-maker should not be influenced by anybody else.

*All information is correct at the time of publishing

Sarah Collier

Sarah is one of our Employment Law Specialists from Napthens Solicitors. Read more

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