Equality and Human Rights Commission

You must not discipline someone, formally or informally, simply because they have a protected characteristic. This would be unlawful.

For example:

An worker aged 21 and a worker aged 42 are both sending and receiving personal emails at work and in working hours. Their employer gives the 21-year-old a written warning because they think that ‘a younger person needs a firmer telling off’, while the 42-year-old is informally told to be more careful. This is likely to be direct age discrimination against the younger worker unless the employer can objectively justify it, which is unlikely.

Of course, this does not mean people with protected characteristics are immune from the usual performance and conduct standards that apply in your organisation.

For example:

A male worker and a female worker are both sending and receiving personal emails at work and in working hours. Their employer gives them both an oral warning. The man says (believing it to be true) ‘you would not take the situation as seriously as this if I was a woman’. By applying the same standards to both workers and having a valid reason for the disciplinary action, the employer has acted without discrimination and can show the man that his allegation is not true.

However, you need to be careful to make sure that what happened during a previous disciplinary situation does not lead to a complaint of victimisation.

For example:

The male worker who complained in the previous example must not be treated badly because of his complaint. This means that if there is a need to discipline him again, the same action must be taken against him as would be taken against someone who had not complained. To protect themselves against allegations of victimisation, the employer will find it helpful if they can demonstrate that procedures have been applied consistently; keeping records of what has been done in every disciplinary and grievance procedure will help with this.

If a worker is a disabled person, you must make reasonable adjustments so that they can participate in the disciplinary procedure, as far as is reasonable, to the same standard as a non-disabled person. This is especially important when it comes to completing and/or reading documents and attending meetings. For example, they might need:

• Documents provided in a different format – perhaps on audio CD, or in large print or in Braille, for people with a visual impairment.
• Meetings to be held in an accessible room, for people with a mobility impairment.
• A British Sign Language (BSL) interpreter if they are a Deaf person who uses BSL.
• Someone to help them complete a form if they have dyslexia.
• A personal assistant with them, in addition to their ‘official companion’ (the trade union representative or colleague who may address the meeting for them, if they decide to have one). They may need a personal assistant for this situation even if they do not normally use one at work.
• Changes to the process, such as more breaks to ask for an explanation from their official companion, if they have a learning disability.

You must also think about whether you should make reasonable adjustments to the standards you apply to workers where these standards place disabled workers at a substantial disadvantage compared to people who are not disabled.

If necessary, you must make reasonable adjustments to what you do as well as the way that you do it.

For example:

A disabled worker has a condition that causes them severe pain. One day, the worker shouts at their employer. This is completely out of character, and is because of the pain they are experiencing. Usually, this would lead to a worker being considered for disciplinary action. However, their employer knows about the worker’s disability and, as a reasonable adjustment, operates a higher threshold before considering their behaviour to be unacceptable. (They have also encouraged the disabled worker to be open with colleagues about their condition so that other staff understand the reason for the difference in treatment.) This does not mean that the disabled worker can behave as they like; the employer only has to make reasonable adjustments, so if their behaviour is unacceptably bad, the employer still has the option of disciplinary action. If this was the case, although the disciplinary action might amount to treating the disabled worker unfavourably because of something arising from their disability (their short temper), the employer would probably be able to objectively justify their approach.

You can read more about making reasonable adjustments to remove barriers for disabled people.

This guide only tells you about equality law. There are other procedures which you need to follow to make sure a disciplinary process is fair. You can find out more about these from Acas, whose contact details are found within Further sources of information. Following the procedures will also help you avoid unlawful discrimination.