Claims that Conservative MP Nusrat Ghani was sacked because of her Muslim faith, show why equal opportunities and anti-harassment and discrimination policies must be truly embedded in organisations, from the very top.
Ms. Ghani’s experience, regardless of the future outcomes of a formal inquiry, suggests a concerning disregard for equality within the current government, with the response to date providing stark learnings for any organisation keen to create an inclusive and positive working culture.
Although MPs are not classed as employees, the circumstances of Ms. Ghani’s case draw interesting parallels with internal grievance processes, which will be familiar to HR professionals. The failure to properly adhere to similar internal processes, implies shortcomings in the Conservative Party to uphold its own equal opportunities policy and code of conduct.
Many employers, like the Conservative Party, will champion equal opportunities. Indeed, the Party states on its website; it is opposed to any form of less favourable treatment or financial reward through direct or indirect discrimination, harassment or victimisation of members of staff or job applicants on the grounds of age, religious beliefs, ethnic origin, gender, sexual orientation or disability.
It isn’t enough, however, to simply have equal opportunities statements on websites or policies and procedures in place, and it will not be enough for an employer to escape liability for acts of discrimination or harassment carried out by its employees.
In Allay (UK) Ltd v Gehlen, it was held that the employer could not rely on the ‘reasonable steps’ defence to a claim of harassment, where anti-harassment training provided to employees had become ‘stale’. An employer may defend a harassment or discrimination claim if it can show that it took ‘all reasonable steps’ to prevent the employee from ‘doing that thing’ or from ‘doing anything of that description’.
If employees are engaging in harassment or are in any way demonstrating that they do not understand the importance of preventing (or reporting) it, this should serve as a reminder to employers to refresh anti-harassment training. When Ms. Ghani reported the incident to her superior, updated training should have been immediately rolled out. Employers must ensure though, that such a measure is not simply a ‘box ticking’ exercise, but thorough and as up to date as appropriate.
It is critical to point out that an employer’s priority should be prevention in the first instance and employers should ensure the provision of regularly refreshed and in-depth training to employees.
Businesses and HR teams will aim to implement and protect equal opportunities policies through internal grievance procedures, as well as through ensuring compliance with the Acas Code of Practice.
Although the Conservatives don’t necessarily follow the Acas Code for MPs, due to MPs being office holders and not employees, they do have a formal complaints procedure. When Ms. Ghani first raised her allegations of discrimination with Boris Johnson, he met with her and then followed up in writing to recommend that she make a formal complaint. Taking this into account, on first blush, it would seem the Prime Minister followed the right course of action. However, this makes no allowance for three crucial factors.
The first is that the Conservative Party has faced and formally addressed serious claims of Islamophobia previously. Secondly, Ms. Ghani considered her situation serious enough to raise it with the most senior person in the organisation and had stated that she did not have confidence in the internal complaints process, and it wouldn’t be the appropriate forum to investigate her concerns, and finally, she decided not to make the formal complaint.
Taking these events into consideration, it is within reason to suggest Ms. Ghani was not treated with integrity, objectivity and accountability – all values outlined in the Party’s code of conduct.
The complaint made by Ms. Ghani should have been investigated, even though she was reluctant to follow the Government’s preferred route. The allegations concern a serious legal issue, which the Prime Minister and his team should have acknowledged by taking further steps to understand why Ms. Ghani had decided to not take any further action. This could have pinpointed a need to act outside of the formal complaints procedure to ensure laws were being upheld. It may have identified the need for an independent investigation, to create an environment where allegations could be fully heard and considered.
For employers, the Acas Code does not state who should investigate a grievance, however, when the evidence to be investigated is serious and complex (such as allegations of discrimination or bullying) appointing an experienced and senior individual would be desirable. The Code confirms it is highly recommended that anyone appointed as an investigator should be trained in the area, whenever possible, which would certainly be advisable when dealing with such a sensitive complaint.
An employer’s failure to properly investigate or deal with a grievance alleging discrimination is not necessarily a further act of discrimination. It has, however, been established via case law, that an employer’s decision to dismiss an employee, who had submitted a grievance, was treated unfairly and victimised.
In Ms. Ghani’s case, it is, at this point, reasonable to conclude that a serious grievance of harassment and / or discrimination was not properly investigated.
Employers should properly consider how they investigate serious grievances to ensure they minimise the risks of any further claims of harassment or discrimination. Furthermore, undertaking robust and well-considered steps early on can help to avoid prolonging, and exacerbating situations, which risks damage to an employer’s reputation, in addition to costly tribunal claims
Although Boris Johnson has now called an inquiry into Ms. Ghani’s claims, it can seem that this is with some reluctance. There is also no use in shutting the stable door, after the horse has bolted. Failing to investigate such serious allegations, arguably shows little respect for the individuals involved and is not conducive to creating a culture of openness and honesty – further values from the Conservative’s code of conduct.
Companies and HR teams who act decisively and confidently to address grievances and do so with impartiality, will help protect themselves against claims of discrimination. They are also more likely to ensure inclusivity, diversity and equal opportunities are positively promoted throughout their organisations.
