In the case of Gayle v Donaldson Associates Ltd ET/2302628/15 the Employment Tribunal rejected an employee’s claim of discrimination where the employer failed to follow its capability procedure; the Employment Tribunal found that there was no discrimination as the employer did not follow the capability procedure in any cases where an employee did not have sufficient continuous employment to make a claim for unfair dismissal.

Ms Gayle was employed as administration manager by Donaldson Associates Ltd, a firm of consulting engineers, from May 2014 until her dismissal on 5 August 2015. Her line manager was Mr Kite – Mr Kite was initially pleased with Ms Gayle’s performance but developed the opinion that she lacked attention to detail (for example, misspelling a client’s name, taking down a telephone message incorrectly etc.).

In June 2015 Mr Kite, against the advice of the HR manager, Ms Bridgwood, placed Ms Gayle on a Performance Improvement Plan (“PIP”). Ms Gayle complained about the imposition of the PIP and the use of the capability procedure, arguing that the use of the PIP was unreasonable and discriminatory.

Two weeks after the PIP had been imposed Ms Gayle went off work sick. Mr Kite decided that she should be dismissed, given that she had not shown any improvement in those two weeks.

After being dismissed Ms Gayle made a claim to the Employment Tribunal for direct discrimination and victimisation on the grounds of race and sex. She argued that the managing director of the company, Ms Capel, had interfered with Mr Kite’s management and that the imposition of the PIP was in breach of the capability procedure.

The Employment Tribunal found against Ms Gayle in respect of both her claim for direct discrimination and victimisation. It found that the company had a custom and practice of not applying the capability procedure when the employee did not have sufficient continuous service to bring a claim for unfair dismissal; as Ms Gayle did not have the necessary continuous service to bring a claim for unfair dismissal the capability procedure was therefore not properly applied and she was dismissed. The Tribunal found that this was not discrimination as the procedure was applied uniformly by the company.

In respect of Ms Gayle’s claim for victimisation, the Employment Tribunal held that Ms Gayle had not undertaken a ‘protected act’ as, although she had complained that she was being discriminated against by the imposition of the PIP, she had not specified what protected characteristic(s) she was relying on. The Tribunal held that, if they were wrong on this point, Ms Gayle had not been subjected to any detriment because of her complaint of discrimination as the person who had made the decision to place her on the PIP (Mr Kite) was not aware of the contents of the complaint that had been made.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers should take care to implement procedures and to follow those procedures, otherwise they may find that a failure to follow procedure may result in a claim for discrimination and/or victimisation, in this case. Further, employers may open themselves up to unwelcome and public criticism by the Employment Tribunal if they fail to take appropriate or consistent action where employees are allegedly underperforming.”

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Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees

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