In Lawrence v HM Prison Service the EAT was recently asked to clear up an issue that has been causing uncertainty ever since the Dispute Resolution Regulations came into force in October 2004. In the words of the President of the EAT this appeal raised “yet again a problem arising under the Dispute Resolution Regulations”, leaving us in little doubt as to his views on the new procedures!

Mr Lawrence suffers from eczema and was dismissed by the Prison Service for his poor attendance record. He brought a Tribunal complaint claiming that his dismissal was wrongful, unfair and discriminatory under the Disability Discrimination Act 1995. The Prison Service argued that the Tribunal should not accept his claim of disability discrimination because he had not raised a grievance about it prior to lodging his complaint. Mr Lawrence argued that he was not required to raise a grievance because he was claiming that his dismissal was discriminatory and employees are not required to raise a grievance about the fact they have been dismissed. He referred the Tribunal to Regulation 6(5) of the Dispute Resolution Regulations which provides that: “neither of the [statutory] grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee”.

The Employment Tribunal dismissed Mr Lawrence’s argument and said that Regulation 6(5) is only triggered where an employee is complaining about the dismissal itself ie unfair dismissal. If he is complaining about something else, such as disability discrimination, he is required to raise a grievance about it, since otherwise the employer might not get an opportunity to address the employee’s concerns prior to his lodging a Tribunal complaint. The Tribunal Chairman said that providing that chance was exactly what the Dispute Resolution Regulations were designed to do.

The EAT has now overturned the Tribunal’s decision. Whilst recognising the force of the Chairman’s arguments it said that Rule 6(5) makes it quite clear (some might disagree!) that the statutory grievance procedures do not apply where an employee is complaining about anything to do with his dismissal or proposed dismissal, even if he is alleging that his dismissal is discriminatory as well as unfair. It said that it could see no merit in carving up complaints, with different procedures applicable to different elements of it.

The EAT’s decision is sensible and supports the approach that most employers have been adopting in practice. After all, to require employers to comply with both the dismissal/appeal and grievance procedures in such circumstances only causes confusion and unnecessary duplication. Having said that, as the Tribunal quite rightly pointed out, it does mean that if employees are not required to raise a separate grievance in such circumstances employers might not get an opportunity prior to Tribunal proceedings to deal with an allegation of discrimination in the dismissal process. There is after all nothing to stop an employee from alleging that a dismissal was discriminatory after the event. The President of the EAT seemed to think that this should not be a problem in the vast majority of cases because employees will normally raise their concerns about discrimination in the course of the dismissal process – some employers might not agree!

This decision means that employees will have to ensure that they lodge any discrimination claims arising out of their dismissal promptly. They cannot, as some employees have sought to do in the past, gain extra time by lodging a grievance after their dismissal – certainly to the extent that any allegation of discrimination arises out of the dismissal. This is because Regulation 15(1) of the Dispute Resolution Regulations only extends time for presenting a claim by 3 months where the employee has raised a grievance within the normal time limit for lodging a claim. If the statutory grievance procedures do not apply, the extension is not available.

As a general rule employees will still have to raise a grievance if they wish to bring a claim of constructive dismissal.

In light of all the controversy and confusion surrounding the Dispute Resolution Procedures it is not at all surprising that Michael Gibbons, the individual tasked by the DTI with reviewing them, has called for them to be scrapped and replaced with “clear, simple, non-prescriptive guidelines on grievances, discipline and dismissal in the workplace”. Just like the ones we used to have, a cynic might suggest! Believe it or not, the Government is now therefore consulting about new proposals to replace the existing scheme. The consultation period closes on 20 June 2007.

¦ EOC celebrates judicial review success

The Equal Opportunities Commission (EOC) has successfully challenged the UK Government’s implementation of certain aspects of the 2002 Equal Treatment Amendment Directive.

The EOC brought judicial review proceedings in the High Court, claiming that the new statutory definitions of harassment and of discrimination during pregnancy or maternity leave do not offer women the level of protection dictated by the Directive. In particular it said that the definition of harassment was too narrow, that employers should be liable for the discriminatory acts of third parties (such as customers and suppliers) and that women should not have to point to a comparator when claiming discrimination on pregnancy/maternity grounds, as women have special needs during pregnancy, such that finding a man in similar circumstances may not be practicable.

Mr Justice Barton upheld the EOC’s challenge and said that certain aspects of the Employment Equality (Sex Discrimination) Regulations 2005 (being the regulations designed to implement the Amendment Directive) should be redrafted to address the issues raised by the EOC. The Secretary of State was given until midday on 16 March 2007 to inform the EOC and the High Court of how the Government plans to remedy the situation. As far as we are aware it has now simply confirmed that it will review the Regulations in the light of the Court’s findings.