Unfair disciplinary process

[becky2585]

Just to clarify something here. Victimisation is a very precise legal point.

 

You can't claim victimisation unless there was first a "protected act", and then suffered a detriment as a result.

 

To be capable of being a protected act, there has to be a complaint about either discrimination, or asserting (certain) statutory rights. Merely raising a grievance, or complaining about workload, isn't a protected act. Raising a grievance can be a protected act, but only if it raises complaints about the statutory rights which I previously mentioned.

 

You can't claim victimisation for raising complaints merely about your own contract being breached, for example. Those legal provisions were removed a while back. You also can't claim victimisation, for example, asserting your statutory right to bring a personal injury claim against your employer. For some reason, that's one of a list of statutory rights which are not protected.

 

I don't see legal victimisation here. Certainly the OP has been singled out - but not victimised. Not in terms of the legal definition, anyway.

[becky2585]

what if she were to raise the issue of her nationality as being the basis of discrimination this would this count as a protected act?

Is it then the case that company would have to demonstrate how the decision was reached and that it was properly documented?

If, as we clearly suspect, the partner has no actual evidence of under performance other than opinion then they would surely struggle to do this?

 

If she alleged discrimination because she was German and then was disciplined, then yes, it could be. But it would have to have been before she was disciplined. To allege it now would be an allegation of race discrimination, which could be very hard to prove.

[becky2585]

OP, your wife will need to demonstrate that the PRIMARY reason for dismissal related to her race - which, given that I don't think you genuinely believe it was, will be difficult.

 

She would need a comparator to prove this - i.e. a non German, who also had under a years service and who was not disciplined for commiting the same offence! Not easy.

 

If they were discriminating, surely they wouldn't have followed a procedure at all? The employer has written evidence of a disciplinary - your wife has no evidence of race discrimination. I just can't see it working.

[becky2585]

It would only be discriminatory if the disciplinary process was spurious.

 

When employers are concerned about dismissing an employee who they are concerned will bring a discrimination claim, we always advise to follow a disciplinary procedure like an employee with over a years service. That way, the employer has a paper trail to rebut allegations of discrimination.