A recent Employment Tribunal decision highlights the importance of fair and consistent disciplinary procedures and the risks employers face when decisions appear to have been made before an investigation has been completed.
In Dowling v Yo! Sushi UK Ltd, a former restaurant manager was awarded more than £32,000 after successfully bringing claims for unfair dismissal and direct sex discrimination.
The case is a useful reminder for employers and managers: disciplinary investigations should be genuine fact-finding exercises, comparable employees should be treated consistently, and decisions should only be made once all the relevant evidence has been considered.
What happened in Dowling v Yo! Sushi UK Ltd?
The case arose following complaints about alleged sexist, homophobic and inappropriate behaviour by the claimant’s brother-in-law, who worked as a chef at the same branch.
When concerns were raised by a colleague, the manager took steps to avoid a potential conflict of interest by asking his deputy manager to escalate the matter to HR. He later obtained a witness statement and suspended his brother-in-law following instructions from senior management.
Despite these actions, the employer began disciplinary proceedings against the manager on the basis that he had failed to adequately protect employees.
Following an investigation and disciplinary process, he was dismissed.
However, the Employment Tribunal found significant problems with the way the process had been handled.
The risk of a pre-determined disciplinary outcome
One of the most damaging pieces of evidence was an email sent by a senior manager involved in the process before the investigation had concluded.
The manager stated that they had “no confidence in his managerial ability” before the disciplinary process had properly taken place.
The Tribunal concluded that this indicated that the outcome had effectively been pre-judged.
This is an important lesson for employers. A disciplinary investigation should establish the facts rather than simply gather evidence to support a decision that has already been made.
Managers involved in investigations and disciplinary proceedings should therefore be careful about written and verbal communications throughout the process. Emails, Teams messages and other internal correspondence could later form part of the evidence considered by an Employment Tribunal.
Why did the sex discrimination claim succeed?
The case also demonstrates the importance of consistent treatment during disciplinary proceedings.
Other managers involved in responding to the same incident were treated differently. The Tribunal found that:
- The claimant’s female deputy manager was not disciplined
- The claimant’s female line manager was not disciplined
- Neither individual faced dismissal
- All had some level of involvement in handling the matter
The employer was unable to provide a convincing explanation for why the claimant had been treated more harshly than his female colleagues.
As a result, the Tribunal upheld his claim for direct sex discrimination.
For employers, this demonstrates how inconsistent treatment can create significant discrimination risks. Where employees in similar circumstances are treated differently, there should be a clear, legitimate and documented reason for that difference.
Five lessons for employers
- Keep disciplinary investigations impartial
An investigation should be a genuine attempt to establish what happened.
Managers should avoid reaching conclusions, suggesting sanctions or making comments about an employee’s future before the relevant evidence has been gathered and considered.
- Be consistent
Consider the actions of everyone involved in an incident.
If one employee faces disciplinary action while another person in comparable circumstances does not, make sure there is a clear reason for the difference in treatment and that this is properly documented.
- Separate the stages where possible
Where practical, consider using different people to conduct the investigation, disciplinary hearing and appeal.
This can help demonstrate impartiality and reduce the risk of one person’s existing views influencing the entire process.
- Consider discrimination risks
Consistency is particularly important where employees have different protected characteristics.
Different treatment does not automatically amount to discrimination, but employers should be able to explain and evidence why different decisions have been made.
- Keep clear records
Document the evidence considered, the employee’s response, the reasoning behind the decision and why a particular sanction was considered appropriate.
Good record-keeping can be crucial if the decision is subsequently challenged.
What should employers take away from this case?
Even where the allegations involved are serious, employers still need to follow a fair and impartial process.
Evidence of a pre-determined outcome, inconsistent treatment of comparable employees and poor decision-making can turn an already difficult employee relations issue into a costly Employment Tribunal claim.
Having clear disciplinary policies and procedures, properly trained managers and access to professional HR and employment law advice can help employers make fair decisions and reduce the risk of claims.
How Bhayani Law Can Help
Managing disciplinary issues can be challenging, particularly where the allegations are serious or there is a risk of discrimination, unfair dismissal or other Employment Tribunal claims.
Bhayani Law can support you at every stage of the disciplinary process, from the initial investigation through to disciplinary hearings, appeals and, where necessary, Employment Tribunal proceedings.
Our combined employment law and HR expertise means we can help you put the right process in place, support your managers in making fair and consistent decisions, and identify potential legal risks before they become costly disputes.
Through our Watertight HR & Legal service, employers can also access ongoing HR and employment law support when workplace issues arise.
Don’t wait until a disciplinary matter turns into a Tribunal claim. Speak to our specialist Employment Law and HR team for practical advice and support tailored to your organisation.
Call 0333 888 1360 or email [email protected] to speak to the Bhayani Law team today.
Frequently Asked Questions
Employers should not treat a disciplinary hearing as a formality where the outcome has already been decided. The employee should have a genuine opportunity to respond to the allegations and evidence before a final decision is made. Evidence suggesting that the outcome was pre-determined can undermine the fairness of the process.
Not necessarily. Every situation will depend on its particular circumstances. However, where employees are in comparable situations but are treated differently, the employer should be able to provide a clear and evidence-based explanation. Unexplained inconsistencies can increase the risk of unfair dismissal and discrimination claims.
Employers should follow a consistent disciplinary procedure, investigate allegations objectively, consider how comparable cases have been handled and clearly document the reasons behind decisions. Managers involved in disciplinary processes should also receive appropriate training so they understand the importance of fairness, consistency and avoiding unconscious bias.
