July 11 2007 Employment Law Enews

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

Statutory dismissal procedures: when a grievance is really an appeal

When an employee has reasonable grounds for believing that a dismissal procedure is being followed, the time limit for submitting a tribunal claim may be extended by three months to allow for the completion of that procedure (for instance, to hear the employee's appeal against his dismissal). The recent case of Harris v Towergate London Market Limited considered whether an employee who lodged a grievance against her dismissal held such a belief.

Facts

Mrs Harris was made redundant by Towergate on 31 October 2006 following an assessment. Mrs Harris did not appeal against her redundancy. However, following remarks made at her leaving party that suggested her assessment had been inaccurate, Mrs Harris contacted her trade union. The union arranged a meeting with Towergate, during which Mrs Harris was provided with a copy of her assessment and information used in the assessment process. On the incorrect advice of her Union, Mrs Harris subsequently lodged a grievance challenging her dismissal and requesting a further meeting. Towergate refused to deal with the grievance and Mrs Harris filed a claim for unfair dismissal that was out of time.

Decision

The EAT concluded that, in light of Towergate's follow up of her concerns, Mrs Harris had reasonable grounds for believing that a dismissal procedure was being followed. Further, it was clear that Mrs Harris' purpose in lodging the "grievance" was to challenge her dismissal. It was incorrect, therefore, to simply focus on whether a formal "appeal" had been made. In the circumstances, Mrs Harris' "grievance" amounted to an appeal and she was entitled to a three month extension in which to make her claim.

Comment

This case confirms that the statutory procedures should not be interpreted in an excessively technical manner and employers should, therefore, consider the purpose and substance of a "grievance" concerning a dismissal to ensure that if is actually an "appeal" against dismissal, it is dealt with in the appropriate way.

Further, provided that an employee believes that a process is being followed, this need not be the employer's internal procedure. A point which the EAT affirmed in the case of Arnold Clark Automobiles Limited v Glass, in which Mr Glass sent a "letter of grievance" concerning his dismissal rather than lodging an "appeal" under Arnold's internal procedure. The case was remitted to the tribunal to consider whether Arnold had a reasonable belief that a dismissal process was being followed at the time the time limit had expired.

New Green Paper on a Single Equality Bill

There has been much media focus on the Green Paper published by the Government on 12 June 2007. The focus of the reports has been on eliminating discrimination in private clubs, such as golf clubs, despite the fact that only 2% of the 189 page-long paper is dedicated to this subject.

The Green Paper, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, was published as part of the Discrimination Law Review. Following this publication there will a public consultation on the proposals put forward in the Green Paper. The closing date for the consultation is 4 September 2007.

The Government manifesto set out in the Green Paper is to introduce a Single Equality Act to simplify and streamline all the different strands of discrimination legislation. A number of the proposals set out in the paper relate to employment legislation. However, discrimination in the provision of goods, services and facilities is also covered, as is insurance and private members' clubs.

Amongst the employment related proposals set out in the Green Paper, the most notable are:

• A proposal to protect transgender people against indirect discrimination.
• A proposal to apply the same defence of objective justification ("a proportionate means of achieving a legitimate aim") to all types of indirect discrimination.
• A proposal to remove the requirement for a comparator in claims of victimisation brought under the discrimination legislation.
• A proposal to bring the Equal Pay Act 1970 within the scope of the Single Equality Act. The grounds on which claims can be brought will be simplified and the legislation will be updated and amended, based on case law that has arisen

Early reactions to the Green Paper have been mixed. Trevor Phillips (Chair of the CEHR) remains optimistic that the Bill will: "shift the drive for fairness from courtroom battles after things have gone wrong to transforming the cultures of our workplaces and communities". The EOC Chair however has commented that "the proposal to tackle discrimination in private members clubs is not the biggest challenge women face today" and regretted the "missed opportunity to tackle the gender pay gap". We will keep you updated with future developments.

Increase in statutory holiday entitlement - the latest update

The Government has published its response following the further consultation on its proposal to increase the statutory minimum holiday entitlement. As originally planned, the annual entitlement will be increased from 4 to 4.8 weeks (which equates to 20 to 24 days for a full-time worker) on 1 October 2007. However, the second increase to 5.6 weeks (28 days) will be delayed and will not come into effect until 1 April 2009. Part-time workers will be entitled to an equivalent amount of statutory holiday, on a pro-rata basis.

As a transitional measure, employers can make a payment in lieu in respect of the additional four days introduced on 1 October 2007, only until 1 April 2009. After 1 April, a payment in lieu can only be made on termination of employment. The Regulations will, however, permit the additional eight days to be carried over to the following holiday year. Further information is available on the DTI website.

This article copyright © 2007 Steeles Law llp. All rights reserved.