January 2006 Employment Law Enews

Welcome to the latest edition of steeles employment law e-news.

Letter of resignation amounts to a formal grievance

Following the introduction of the Statutory Grievance Procedures ("the Procedures") in October 2004, the issue of what amounts to a grievance letter has been thrown into the lime light. Under the Procedures, an employer who receives a grievance letter must:

• invite the employee to a meeting to discuss the grievance;
• hold a meeting;
• confirm its decision in writing;
• give the employee the right to appeal against the decision; and
• deal with the appeal, if any, by inviting the employee to a meeting, holding the meeting and confirming the final decision in writing.

If the employee fails to issue a grievance he/she may be barred from issuing certain claims (including constructive dismissal) in the employment tribunals. If the employer fails to deal with the grievance and the employee issues a claim and wins, the employee will be entitled to an increase in compensation of between 10-50%.

Recent cases have shown that employment tribunals are willing to widely interpret what amounts to a grievance letter.

The Procedures simply state that an employee must set out his/her grievance in writing and send it to his/her employer. It has been left to the tribunals to decide what amounts to a grievance letter based on the facts of the case. Previous decisions have held that the following can amount to grievance letters:

• A letter to an employer alleging that the disciplinary procedure was tainted by bias. The employee claimed that the employer had already decided that the employee had committed fraud before investigating the matter (Cooke v Secure Move Property Service (2005))
• Letters from an employee's solicitor threatening legal action in respect of the employee's complaints (Stewart v Barnetts Motor Group Ltd (2005))
• A solicitor's letter before action sent on behalf of an employee (Aspland v Mark Warner Ltd (2005)).

The latest case on this issue is that of Galaxy Showers Limited v Wilson (2005) UK EAT 0525 05. This is the first time that the Employment Appeal Tribunal ("EAT") has had to decide what can amount to a grievance letter. The cases listed above were decided by employment tribunals. The case involved an employee who wrote to his employer on 9 December setting out his complaints and indicating that unless they were resolved he would resign. The employer failed to treat the letter as a formal grievance and take any action in respect of it and the employee resigned on 31 December. The employee claimed constructive dismissal. The EAT concluded that the employee's letter amounted to a grievance letter. They stated that:

'The definition of a grievance does not...contain any requirement that the complaint should go any further than being a complaint about what the employer has or has not done. There is no particular formality required by the statutory wording.'

The case reiterates the courts' broad approach to the definition of a formal grievance letter and serves as another warning to employers that they should treat this issue very carefully. Failure to do so could leave employers liable to pay an increase of between 10 - 50% in employees' compensation.

Defending Equal Pay claims - Good news for employers

Under the Equal Pay Act 1970, men and women are entitled to receive equal pay to that of a comparator of the opposite sex for like work, work of an equivalent kind or work of equal value. If, however, an employer can show that the difference in pay is due to a 'genuine material factor which is not the difference in sex', they are entitled to pay men and women at different rates. Examples of genuine material factors are market forces, the skills and qualifications of employees and geographical locations.

Up until the case of Sharp v Caledonia Group Services Ltd (2005) UK EAT 0041_05_0111 in August 2005, it was established law that in cases where the material factor relied upon amounted to sex discrimination, employers were not only required to establish a genuine material factor as the reason for the difference in pay, but they would also have to objectively justify this factor. This objective justification would involve the employer proving that the difference in pay:

• Is due to a to a real need on the part of the employer;
• Is appropriate to achieve the objective; and
• Is necessary to achieve that objective.

The Sharp case cast doubt over this position and held that objective justification was required in all equal pay cases, regardless of whether they concerned sex discrimination, thereby making it harder for employers to raise a defence to equal pay claims.

However, help has now arrived for employers following the Court of Appeal decision in Armstrong v Newcastle Upon Tyne Hospital Trust (2005) EWCA Civ 1608, heard on 21 December 2005. This case reverted back to the previous law and re-established that there is no need for an employer to objectively justify a difference in pay unless the reason for the difference (i.e. the genuine material factor) amounts to sex discrimination.

UK criticised for discriminatory treatment of transsexuals

The case of Richards v Secretary of State for Work and Pensions, heard on 15 December 2005, held that the UK's treatment of a male to female transsexual was in breach of European law. Having completed gender reassignment surgery in 2001, Richards made a claim in 2002 for her state pension to be paid at 60. She was denied the right and told by the DWP that she would have to wait until she was 65, as she was still male.

In the UK, women are entitled to claim their state pension at 60 whereas men must wait until they are 65. The Advocate General stated that the failure of the UK to treat a transsexual female in the same was as her comparator, which in this case was a female who had been female from birth, rather than as a result of surgery, amounted to discrimination. Consequently Richards was entitled to claim her state pension at the age of 60.

Forthcoming seminars

Managing Sickness Absence in the Public Sector

Cheryl Edmonds, principal in the steeles London Employment team, is speaking at the forthcoming seminar: Managing Sickness Absence in the Public Sector on Tuesday 28 February in Central London. The seminar will focus on the important issue of reducing absence and increasing productivity in the public sector and would be particularly beneficial to HR managers and personnel staff, GP's, Health and Safety Officers, Occupational Health Therapists, Trade Union representatives and Line managers.

For further information about the seminar or to book a place please contact our London employment law team at: lonemp@steeleslaw.co.uk or on 020 7421 1749.

Top 10 Employment Law Issues of 2005 - Norwich

The past year has seen numerous changes in employment law. These changes have wide implications for all employers and will require them to update their current policies and practices.

We know how difficult it can be for you, as an employer, to keep abreast of all the developments in employment law. With this is in mind, the next of our successful series of employment law seminars will cover the most important developments in employment law in 2005 and give you an insight into what is to come in 2006.

Over a full English breakfast we will review the following areas:

• Disability Discrimination
• Sex Discrimination
• Statutory Dismissal and Grievance Procedures
• Stress
• Harassment
• Compromise Agreements
• Transfer of Undertakings
• Agency Temporary Workers
• Age Discrimination
• Religion or Belief and Sexual Orientation Discrimination

This breakfast seminar takes place on Wednesday 1 February at Norwich City Football Club. The seminar has a 7.45 for 8.00am start and should conclude no later than 10.00am. Cost is £40 + VAT. To reserve your place please call 01603 598000 or book online

This article copyright © 2006 Steeles Law. All rights reserved.