Stuart Markless answers your questions on discrimination law and Compromise Agreements
Q: An employee has raised grievances about race discrimination. He causes problems and has made sexist remarks to a colleague. He says she was abusive because he is black. It would be best if he moved on. What should I do?
SM: To be able to dismiss you need to first investigate thoroughly to find out exactly what was said. You need to establish:
- Whether it was sexist or racist
- If it was serious enough for either party to feel harassed
- The context in which the exchange took place
Before taking any disciplinary action, interview both parties to establish who, if anyone, should be disciplined. Be careful not to unfairly side with one employee - this could constitute discriminatory behaviour if it is shown you have treated an individual less favourably on the grounds of their race or sex.
Dismissal could be a reasonable response if you have fairly and objectively considered all the circumstances.
Q: Can I make him a ‘without prejudice’ offer to leave?
SM: Avoid doing this prematurely as your discussion might not attract the confidentiality ‘without prejudice’ exchanges normally enjoy.
There is one notable case where an employee had been complaining she had been discriminated against. The employer met with her and without warning made a ‘without prejudice’ offer for her to leave. When she brought a subsequent claim against the employer, confidentiality was waived by the court because there was no live dispute. As a result, the employee was able to refer to the events and argue this was victimisation, an additional act of discrimination, due to her having raised previous complaints.
To be safe, an employer’s off-the-record offer should only be made after the employee has been disciplined.
Q: I have started disciplinary proceedings against him which could result in dismissal. He has now asked to be paid off. Can I do this without come back?
SM: As he suggested being paid off, it would be difficult to argue it is an act of discrimination. And, as you now have an existing dispute with him, you should be ok on that front too. To go about this, make sure you document the fact he proposed the pay off.
The next step is to draw up a Compromise Agreement. This means that in exchange for a sum of money and, if appropriate, a reference, the employee agrees to the termination of his employment and waives his right to bring any subsequent claims against you - eg discrimination, statutory or contractual claims.
To be valid, a Compromise Agreement requires certain conditions to be met:
- It must be in writing
- It must relate to a particular complaint or proceedings
- The employee must have advice from a named, qualified independent adviser
Ensure any reference is accurate as you have a duty of care towards other employers as well as the employee.
See Compromise Agreements for a detailed overview of compromise agreements and the role they play at the end of the employment relationship.
This article was published in The Argus, March 2009
The information in this article is provided as general guidance only. The law in this area is regularly subject to change, challenge and update. You should always check the up-to-date position and if appropriate seek further specialist advice.
