Aziz v Crown Presecution Service

An employer may begin disciplinary action for suspected serious or gross misconduct, but the suspicion must rest on reasonable grounds. A disciplinary code requiring reasonable attempts to establish the facts before any disciplinary action requires proportionate preliminary enquiries before proceedings are initiated and an employee is suspended, unless reliable direct knowledge makes enquiries unnecessary.

Once formal disciplinary action has been initiated, a right to advice and representation throughout applies to a subsequent interview concerning suspension. A tribunal may infer that less favourable treatment was on racial grounds where it finds serious, knowing breaches of those safeguards and rejects the employer’s asserted non-discriminatory explanation.

Ms Aziz, an Asian Muslim solicitor employed by the Crown Prosecution Service, was suspended after a hearsay complaint that remarks she had made shortly after the attacks of 11 September 2001 had caused a racial disturbance at court. The allegation was later investigated and she was exonerated.

The Employment Tribunal at Leeds upheld her complaint of race discrimination. It found that the CPS had commenced disciplinary proceedings and suspended her without adequate preliminary enquiries, in breach of its disciplinary code, and had denied her representation at the suspension interview. The Employment Appeal Tribunal reversed that decision, holding that the Tribunal had misconstrued the code, and ordered a rehearing.

The central issue was whether the Tribunal’s construction of the disciplinary code, and its resulting finding of racial discrimination, were legally sustainable.

1. Appeal allowed. Lady Justice Smith, with whom Richards and Ward LJJ agreed, held that the Employment Appeal Tribunal had wrongly interfered with the Employment Tribunal’s construction of the CPS disciplinary code. The finding of race discrimination was reinstated.

2. The code permitted action at an early stage on suspicion of serious or gross misconduct, but the suspicion had to have reasonable grounds. Its requirements for preliminary enquiries where necessary, reasonable attempts to establish the facts before any disciplinary action, and an initial assessment of whether counselling was appropriate all required proportionate enquiries before formal disciplinary action and suspension. The code could be applied flexibly: a line manager who had made no enquiries would not necessarily breach it if necessary enquiries were made before the decision to initiate action. On the facts, an unparticularised hearsay report from unnamed sources did not provide reasonable grounds for suspicion of gross misconduct. Basic enquiries into the alleged words and the alleged disturbance were required.

3. Suspension could occur only after a decision to initiate formal disciplinary action. From that point, the employee’s right to advice and representation throughout applied to any subsequent action involving the employee. Although the code did not expressly require a pre-suspension interview, the CPS chose to hold one and asked questions bearing on whether an incident had occurred. Ms Aziz was therefore entitled to representation at it. The denial of that protection was a further breach of the code.

4. The Employment Tribunal was entitled to regard the breaches as serious and obvious, to reject the evidence that the CPS believed it was following its code, and to infer that the less favourable treatment was on racial grounds within the Race Relations Act 1976. The case was remitted to the Employment Tribunal solely for assessment of compensation. That assessment was to treat the suspension and transfer as the detriments, rather than treating distress flowing from them as a separate detriment.

• Court of Appeal (Civil Division): Allowed Ms Aziz’s appeal, set aside the Employment Appeal Tribunal’s decision, reinstated the finding of race discrimination, and remitted the case to the Employment Tribunal for assessment of compensation.
• Employment Appeal Tribunal: Allowed the CPS appeal on 24 May 2005. It held that the Employment Tribunal had misconstrued the disciplinary code and remitted the case for rehearing.
• Employment Tribunal (Leeds): On 11 June 2004, unanimously upheld the race-discrimination complaint, rejected the sex-discrimination complaint, and found that the CPS had breached its disciplinary code.