When it comes to disciplining an employee, it would appear that employers should depart from their standard procedures at their peril.

The employee in this case, a homosexual man who worked at a Jobcentre, was alleged to have been involved in a relationship with a client who was aged under 18. An investigation followed and the claimant’s manager interviewed the claimant, contrary to the usual procedure of approaching the client first to see if the allegation had any merit. Following an investigation, no further action was taken, and the claimant launched a sexual orientation discrimination claim.

The tribunal found that the decision to contravene standard procedures placed the onus on the DWP to prove that it did not commit discrimination. The tribunal rejected the DWP’s explanation that its actions were due to the client’s vulnerable status, and found that the real reason was the claimant’s sexuality and stereotypical assumptions about his likely behaviour. Similar assumptions would not have been made about a heterosexual man, therefore the DWP was held liable for discrimination. This decision was upheld by the EAT.

Secretary of State for Work and Pensions (Jobcentre Plus) v McCarthy