Lawrence v HM Prison Service (Employment Appeal Tribunal – March 2007)

Since the introduction of the statutory dispute procedures there has been a question as to whether a grievance should be lodged by an employee before making a claim in the Employment Tribunal for unfair dismissal where the employee believes the reason for dismissal was discriminatory.

Ordinarily, under Section 32 of the Employment Act 2002, the Employment Tribunal is not entitled to hear a claim of discrimination unless a written grievance has been raised with the employer (step one of the statutory procedure) by the employer and he has waited 28 days after submitting the grievance before lodging the claim. There is no requirement to raise a grievance where the grievance is that the employer has simply dismissed the employee or is contemplating dismissal of the employee.

In this case the Employment Tribunal held that the employee could not pursue a claim that he had been subject to disability discrimination because he had not lodged a grievance. The Employment Appeal Tribunal held that the grievance was that the employer had dismissed the employee. The Employment Act 2002 (Dispute Resolution) Regulations 2006 (“the Regulations”) state that the grievance procedure will not apply where the complaint is about one particular kind of action; dismissal or proposed dismissal. This draws a clear boundary between the grievance and disciplinary procedures, and it is under the latter that dismissals should be addressed. Further, the Regulations list forms of dismissal to which the disciplinary procedures do not apply; discrimination claims are not included on this list. Any allegation that a dismissal was discriminatory would be examined in the context of the dismissal procedure. Therefore, there was no obligation on the employee to raise a separate grievance in relation to the particular grounds on which he was alleging that his dismissal was unfair. To require an employee to raise a separate grievance over the manner of a dismissal would create considerable difficulties. The Employment Appeal Tribunal saw no merit in having a complaint about a dismissal being carved up in this way.

It is worth bearing in mind that as the grievance procedure is not applicable in such cases the Claimant is not entitled to a three month extension of time in which to lodge a claim under the Regulations.