March 5 2007 Employment Law Enews

Welcome to the latest edition of steeles employment law enewsletter.

Disability Discrimination - duty to make reasonable adjustments

The duty to make reasonable adjustments have proved to be a particular problem area for employers. Can the mere advertising of a job as a full-time position amount to a provision, criterion or practice ("PCP") for the purposes of the Disability Discrimination Act? Under the Act if a PCP places a disabled employee at a substantial disadvantage as opposed to a non-disabled employee, the employer should take steps to make reasonable adjustments.

This has been considered by the Court of Appeal in NTL Group Ltd v Difolco. The Claimant began working for NTL on 4 March 2002. Ten days later she suffered an accident at work resulting in substantial neurological injuries. It was accepted that her injury amounted to a disability within the meaning of the Act. In October 2002 she returned to work part time, but a year later was informed that she was to be made redundant. During the consultation process NTL proposed that the Claimant consider an alternative job, whilst that job was part time, if the Claimant applied for this NTL thought it might be possible for her to work part time. She did not apply for the job and her employment ended on 12 March 2004. She subsequently argued that NTL's refusal to turn the full time job into a part time job before she applied for it amounted to failure to make a reasonable adjustment.

The Court of Appeal whilst not expressly deciding this point as the case was sent back to the employment tribunal, somewhat helpfully they observed that employers are not required to ensure that none of their working arrangements are ever likely to place a disabled person at a disadvantage. The duty is more specific. In this case, given that there was no link between NTL's redundancy dismissal and her disability, the duty would only have been triggered until she had actually applied for the job. This gives some comfort to employers who commonly make reasonable adjustments if a candidate is appointed to a role.

Compromise Agreements

A recent decision of the Employment Appeal Tribunal has reinforced the importance of carefully drafting a compromise agreement.

In Palihakkara v British Telecommunications plc a compromise agreement entered into with the Claimant purporting to settle "all claims past or future arising out of her termination of employment" did not exclude her ability to pursue claims for race and sex discrimination.

The Claimant submitted a grievance in 2002 complaining that she was subjected to bullying and racial harrassment by her colleagues. In 2003 she raised two further grievances and in 2004 appealed against the outcome of those grievances. Her health subsequently deteriorated and she opted to take voluntary redundancy in March 2005.

She signed a compromise agreement in "full and final settlement of all claims past or future arising out of the termination of her employment" including "discrimination on the grounds of race, sex and/or disability".

The issue before the tribunal was whether her claims for sex and race discrimination had been excluded by operation of the compromise agreement. Whilst the Tribunal held that her claim was inadmissable on appeal the Employment Appeal Tribunal held that the proper construction of the agreement only related to claims arising out of her termination and not to claims that arose prior to termination of her employment, thus she was free to bring proceedings for sex and race discrimination.

Grievance letters - under the Modified Grievance Procedures

Following a number of recent cases which give a wide interpretation to what constitutes a step 1 grievance letter, under the Statutory Grievance Procedures ("the Procedures"), the EAT has recently considered the definition under the Modified Grievance Procedures ("MGP").

The Procedures require an employee to raise their grievance formally in writing with their employer, either under the Standard Grievance Procedure ("SGP") or the MGP before an employee can present a claim in the Employment Tribunal.

Recent case law has established that a solicitor's letter before action, a resignation letter, and complaints in writing which do not expressly state that the letter is a grievance letter, all constitute a step 1 letter under the SGP. Step 1 of the SGP states that an employee is required to set out the grievance in writing and send a copy of it to the employer. The SGP applies to employees who are still employed by their employer at the time of raising their grievance. If an employee has left employment at the time they raise their grievance, they can opt to use the MGP, provided both parties agree to this in writing. Step 1 under the MGP, is different to the SGP as it requires an employee to set out in writing the grievance and the basis for it and send this to the employer.

In the case of City of Bradford Metropolitan District Council v Pratt, Mrs Pratt, having left the employment of the Council, for whom she worked as a cleaner, opted to use the MGP before presenting her Equal Pay claim to the Tribunal. She sent a letter to her former employer, which she described as her statement of grievance. In the letter she complained that she had been paid less by way of additional payments than her male colleagues whose work was broadly similar or of equal value to hers. She did not specify the type of work which her comparators did or their grade. The Council requested further information from Mrs Pratt, who replied stating that she was comparing herself to "theatre daymen" who worked on a higher grade then she did. The Council disputed that Mrs Pratt's work was of equal value to that of the theatre daymen. Mrs Pratt then presented her claim to the Tribunal, citing different comparators.

The Tribunal had to consider whether Mrs Pratt had complied with step 1 of the MGP, before lodging her claim. They held that there was enough information in the letter to inform the Council that Mrs Pratt had a complaint against them in relation to the Equal Pay Act. The Council appealed to the Employment Appeal Tribunal ("EAT").

The EAT considered how much detail was required in a step 1 letter under the MGP. It acknowledged that the requirement under the SGP was minimal. However, it took the view that as the MGP only applies where the employee's employment has ceased, and does not require a meeting, the employee must not only set out the grievance but also the reasons why he or she holds the grievance in enough detail to allow the employer to respond. The EAT therefore held that whilst Mrs Pratt's letter would have fulfilled step 1 of the SGP, it did not fulfil step 1 of the MGP. The letter failed to specify the basis of her grievance, as it did not specify the type of work and the type of male colleagues that Mrs Pratt was comparing herself with or the type of additional payment she was claiming. The Council was therefore unable to investigate or respond to her grievance, without additional information. Whilst the EAT acknowledged that Mrs Pratt's later letter in response to the Council's request for additional information did set out the basis for her grievance, that did not assist her as the claim she subsequently brought in the Tribunal was different to the grievance raised in that letter.

Therefore whilst many employees will opt for the MGP once their employment has terminated as this is a shortened procedure, which avoids the need for a meeting, the employee must ensure that there is sufficient detail in their grievance letter to identify the basis of the grievance to allow the employer to investigate and respond to it.

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