UK: EAT ruling flags risk of discrimination claims for investigatory failures

A recent tribunal case has highlighted the risk of disability discrimination claims (for which uncapped compensation and injury to feelings may be awarded) where an employer's investigation of allegations against an employee is inadequate, poorly communicated or unreasonably delayed. Employers should bear in mind that such procedural failings can have a more disadvantageous impact on employees with mental health conditions or neurodivergency and should ensure a fair process is followed, including any reasonable adjustments.

In Griffiths v Essex County Council, the Employment Appeal Tribunal upheld a ruling that the exclusion of an employee with anxiety and depression from the investigation into complaints about her was indirectly discriminatory on grounds of disability. 

The employee had been told only that complaints had been made, not what the allegations were and by whom, and had not been involved in the investigation; after several months the complaints were held to be unfounded. The Employment Appeal Tribunal accepted that a refusal to allow the subject of complaints to participate in the investigation was likely to cause a deterioration in the mental health of a person with a mental impairment, and had had this effect on Ms Griffiths.  It was not justified by any legitimate aim and so amounted to unlawful indirect discrimination. 

This act of indirect discrimination had directly led to Ms Griffiths' decision to resign two years later, following a grievance and appeal process which had failed to resolve matters, as she had never recovered trust and confidence in the employer.  Therefore the tribunal was entitled to award uncapped loss of earnings as compensation for the act of indirect discrimination.