Recent gender reassignment case highlights the need for employers to have a proper grievance procedure in place

A recent case involving Primark Stores Limited highlights the need for employers to follow an appropriate grievance procedure. The failure to do so in this case led, in part, to the decision that the employer had unfairly dismissed the employee by way of constructive unfair dismissal and subjected her to direct discrimination.

In simple terms, constructive unfair dismissal is where the employee terminates her employment contract as a result of the employer’s conduct towards her. This conduct must be a fundamental breach of the employment contract – i.e. serious and not trivial. The decision of the Tribunal led to the claimant receiving a substantial award.

The facts

The claimant employee in this case was a transgender woman. Gender reassignment is a protected characteristic under the Equality Act 2010.

The claimant made a number of allegations against the employer. These include the claimant’s colleagues calling her by her previous name (continuously), making offensive comments and general bullying. As a consequence, the claimant raised a grievance with her employer and ultimately made a complaint to the police. The employer made serious errors in investigating and dealing with the grievance. Seven members of staff were interviewed by the employer. However, the investigation was not thorough and lacked care. The claimant was never informed of the outcome of her grievance nor given a right to appeal. The claimant subsequently resigned and brought this claim to the Employment Tribunal.

In its judgment the Employment Tribunal said:

“The other reason she resigned was because nothing was done about it, because she did not receive outcomes to her grievances, and because as a result of the inaction – right to the last minute – she was still subject to discriminatory actions by other employees… This failure was also direct discrimination. It was sufficiently serious to amount to a fundamental breach of contract entitling the claimant to resign”

The Claim was successful, and Primark was ordered to pay the claimant over £47,000 in damages.

What makes an effective grievance procedure?

The ACAS Code sets out good practice for employers to follow in relation to a grievance procedure. The Code is rather thorough, but the key points are as follows:

  1. Have a Company grievance procedure/policy in place and available to all employees;
  2. Deal with all grievances fairly and without unreasonable delay;
  3. Allow employees to raise grievances informally;
  4. Once an employer receives a written grievance, carry out an investigation into the matter;
  5. Allow the employee to be accompanied at the grievance or appeal hearing;
  6. Hold a grievance meeting with the employee;
  7. Provide the outcome to the grievance in writing;
  8. Notify the employee the right to appeal the outcome;
  9. Hold an appeal meeting;
  10. Provide the final outcome in writing.

There are a number of steps required to follow good practice in respect of a competent grievance procedure.