Deploying a crack team with a flexible strategy is a vital component of a successful defence, says Gillian Howard


Claims for sex discrimination in the City, including law firms, have hardly been out of the news this year. So how can employers successfully defend discrimination cases?



Employers should instruct a knowledgeable legal team early on, to review the pleaded acts of discrimination and all the papers, and take statements.



In this way, an assessment of the risks of the claim can be made and a well-informed decision can be taken of whether the employer is more likely to be able to defend a claim successfully.



If the decision is negative, an approach to settle can be made. Having a strategy and being prepared to change it as time goes on is essential in such cases.



A thorough discovery exercise should take place as early on in the process as possible so that documents both helpful and unhelpful can be reviewed. Imagine the horror of one employer when the applicant’s solicitor disclosed to it a message that the applicant’s boss had written to his boss (discovered by accident by the applicant herself), just after he had learnt that the applicant was pregnant, declaring ‘let’s get rid of her now and we will avoid a sticky situation’.



While we are on disclosure, do not underestimate the opposition, especially in workplace environments where notes are routinely taken. When disclosure is not forthcoming, orders for disclosure will be obtained. If notebooks have been tampered with, this can be discovered by way of forensic investigation.



Recently, a human resources manager from a City bank tore out original pages from her notebooks, then purported to replace them. Unfortunately for her, the applicant’s solicitor could count – there were originally 50 pages in the Cambridge notebook (this was printed on the outside cover) but only 26 pages were disclosed.



A forensic investigation detected the indentations from the pages above and what was written on those pages became legible.



Defences



Employers’ defence to sex discrimination charges is that they have taken ‘such steps as are reasonably practicable to prevent the employee from doing that act’.



This requires the employer to show that they not only have demonstrably satisfactory and up-to-date anti-harassment and equal opportunities policies and procedures, which are well publicised and followed when there is a complaint, but that the alleged perpetrator knows that he/she will face possible summary dismissal for any serious act or omission, and that everyone is trained and re-trained in what is acceptable conduct and language, understands diversity and dignity at work in their fullest sense, and is adequately supervised.



Answering the sex discrimination questionnaire


It is not good enough to rattle off answers to the sex discrimination questionnaire without taking adequate instructions. Recently in one case, the answer to the request for copies of the comparators’ appraisals was that these appraisals were ‘of limited relevance to the issue’ and therefore would not be disclosed (in relation to bonus determinations).



However, in cross-examination, it was admitted by one of the bank’s witnesses that appraisals were relevant.



The employment tribunal’s attention was drawn to the bank’s answer in the questionnaire. An evasive or equivocal answer, or where any reply is delayed without reasonable excuse, can lead a tribunal to draw an inference that discrimination has taken place.



Train senior managers


Training staff to handle grievances with ‘sympathy, understanding and compassion’ is important (Lynock v Cereal Packaging Ltd [1988] IRLR 510). Training managers who are in charge of determining bonuses in equality issues should also be a priority.

Employers should note that the Equal Opportunities Commission’s code of practice on equal pay recommends that employers keep records so that ‘they will be able to explain the reasons and the factors for determining pay’.



The Royal ‘We’


In one banking case earlier this year, a senior manager and the deputy head of HR, hearing the applicant’s appeal against the dismissal of her internal grievance, used the royal ‘We’, apparently meaning ‘management’. This matter was considered by the employment tribunal: ‘On several occasions, [the manager] made comments which could be read as if he were taking the position of an advocate for the respondent rather than an independent person coming fresh to an appeal.’



The manager’s response was that he was ‘merely stating the respondent’s position’ and that his ‘ability to reach an independent decision was not compromised’. The tribunal did not accept this. However, this fact alone did not lead the tribunal to any finding of discrimination in relation to the handling of that appeal.



Victimisation


Sometimes after making a sex discrimination complaint, the woman is marginalised, ‘sent to Coventry’, or allegations are made by her colleagues that she is being unco-operative or is plotting to bring false complaints about them. Sometimes the woman is dismissed.



Unless these complaints of discrimination are made in bad faith, this treatment is unlawful victimisation. ‘Bad faith’ can only be shown where the complainant brings ‘false allegations’ as opposed to concerns and complaints that are well founded but in the end are dismissed or explained.



Gillian Howard is a consultant at London firm Howard & Howard and the author of Drafting Employment Contracts, which will be available from Law Society Publishing in October, priced £69.95 (plus £4.50 p&p). To order a copy call Marston Book Services, tel: 01235 465 656