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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lawrence v. HM Prison Service [2007] UKEAT 0630_06_2603 (26 March 2007) URL: http://www.bailii.org/uk/cases/UKEAT/2007/0630_06_2603.html Cite as: [2007] UKEAT 630_6_2603, [2007] IRLR 468, [2007] UKEAT 0630_06_2603 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Between:
For the Appellant | Mr Bruce Henry (of Counsel) Instructed by: Messrs Lees Lloyd Whitley Solicitors 17-21 Price Street BIRKENHEAD CH41 6JN |
For the Respondent | Ms Nichola Mary Warrender (of Counsel) Instructed by: The Treasury Solicitor – Employment Team One Kemble Street LONDON WC2B 4TS |
SUMMARY
Employee dismissed and claimed unfair dismissal, both on normal grounds and on the basis that he had been subject to disability discrimination. Employment Tribunal held that he could not pursue the latter because he had not lodged a grievance. EAT upheld the appeal and held that it was not necessary to do so. Reg 6(5) of the Employment Act (Dispute Resolution) Regs 2004 applied and his concerns should be dealt with through the employer's dismissal procedures.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
Practice and Procedure - 2002 Act and Pre-action Requirements
"2. – (1) In these Regulations –
"grievance" means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him;…
Application of dismissal and disciplinary procedures
3. – (1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.
(2) Subject to regulation 4, the modified dismissal procedure applies in relation to a dismissal where- [certain conditions are met.]
6. - (1) The grievance procedures apply in accordance with the paragraphs 2-7 of this regulation in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to an employment tribunal under a jurisdiction listed in Schedule 3 or 4, or could do so, if the action took place."
(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.
his reasons as follows (paras 16-18):
"16 It seems to me that the regulation 6(5) exemption disapplying the grievance procedure where the grievance is that the employer has dismissed (or is contemplating dismissing) the employee is intended to grant dispensation only where the employee is aggrieved about the dismissal itself as the actionable wrong. In this case the complaint is the statutory tort of disability discrimination. This is the complaint which DDA section 17A empowers the Claimant to present to an Employment Tribunal, in terms and in substance founded in the act of unlawful discrimination under sections 3A and 4. It is the complaint which his claim form presents.
17 Apart from the matters rehearsed in counsel's submissions, this interpretation also seems to me to best serve the purpose of EA Part 3 (and the regulations under section 32(7)), which is to require employers and employees to attempt to resolve their disputes by internal procedure before resorting to Employment Tribunal proceedings. That necessitates that the parties know that there is a dispute and have some inkling what it is about. That in turn requires the complainant in some shape or form to communicate his complaint.
18 The burden of this dispute is that the Claimant was discriminated against on the grounds of his disability, not that he was dismissed. When contemplating a dismissal, the employer of course is obliged to follow the statutory dismissal and disciplinary procedure and if a dismissal follows the employee may issue tribunal proceedings to put the employer to the test as to whether the dismissal is fair and lawful – for example for a reason relating to the Claimant's capability, as the Respondent contends in this instance. It informs the dispute resolution process nothing for the employee to raise a grievance "I have been dismissed", and Regulation 6(5) relieves him of the obligation to do so. But no dispute about a separate complaint of disability discrimination is intimated unless the employee raises it. Were the employee not required to initiate the grievance procedure in that instance (because Regulation 6(5) does not exempt him from doing so), the happenstance of the employee being dismissed would disapply the statutory grievance procedure in cases where the substantive grievance is a hidden consequence of the dismissal rather than patent from the fact of dismissal – for example when an employee complaints that he should have received a redundancy payment on dismissal. The purpose of the statutory procedure would be defeated."
"43. In this case, if the meaning for which Mr McMahon contends were correct, the Regulations would or might require employees to state a grievance before they could begin proceedings whenever their claim for discrimination, or another schedule 4 claim, involved a criticism of the manner in which an investigation, dismissal or appeal process operated. It would (since employers would then be obliged to respond) be likely to result in much duplication of procedure. There is no indication that duplication of procedure was the objective of the statute, and no reason why it should have been. It would be a surprising outcome, a trap for the unwary, likely to produce injustice. There are many cases in which a complaint is likely to be about both manner and outcome of dismissal. Often such complaints are inextricably intertwined.
44. In my judgment regulation 6(5) was intended to avoid duplication between dismissal procedures on the one hand and grievance procedures on the other. It should be construed broadly, since this will achieve the result desired by Parliament and avoid undue restrictions on the right of employees to begin proceedings. I consider that for the purposes of regulation 6(5) a grievance that the employer has dismissed or is contemplating dismissal includes a complaint about the manner in which the employer is contemplating dismissal. For the purposes of regulation 6(5) a grievance that an employer has dismissed an employee includes a grievance about the manner in which he has dealt with an appeal against dismissal."
Conclusion
Disposal