September 5 2005 Employment Law Enews

Welcome to the latest edition of employment law enews. In this issue we focus on statutory grievance procedures; sexual orientation harassment; disability discrimination and announce details of our forthcoming employment law update seminar.

Letter Complaining of Bias Enough to Constitute Step 1 of Statutory Grievance Procedure

An Employment Tribunal has ruled that an employee need not write a formal grievance letter to comply with the minimum statutory grievance procedures, finding that a letter complaining of bias was enough to constitute a step one statement of grievance under Schedule 2 of the Employment Act 2002 ("the 2002 Act"). Further, an employee who resigns in anticipation of dismissal for gross misconduct need not bring a formal statutory grievance at all before being allowed to claim constructive dismissal.

Cooke v Secure Move Property Services Limited (2005) involved an employee who resigned when faced with the prospect of dismissal for gross misconduct, alleging bias in his letter of resignation. Although making no mention of an official grievance, the Tribunal felt it was enough to 'start the ball rolling'.

Whilst Schedule 4 of the 2002 Act confirms that the statutory grievance procedures apply in cases of constructive dismissal, Regulation 6 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the 2004 Regulations") provide that the procedure does not apply where the employer had dismissed or is contemplating dismissing the employee. It was the Tribunal Chairman's view that Regulation 6 applied in these circumstances.

Perhaps however the most important ruling was that, even if the grievance provisions had applied, the letter alleging bias against the employee was enough under the 2002 Act to constitute a step one statement of grievance.

The case is a good example of why employers must read between the lines when dealing with any complaints from employees. Use of the word 'grievance' is not seemingly necessary where the letter clearly highlights a situation or series of events that they are not happy with, satisfying the definition of a grievance (under the 2004 Regulations) as a 'complaint by an employee about action which his employer has taken or is contemplating taking in relation to him'. Failure to respond to such a grievance, even where not clearly stated as such, may lead to an increase in any award should the matter make its way to the Tribunal.

Sexual Orientation Harassment

In Brooks v Findlay Industries UK Ltd (2005) a gay employee successfully established that his employer was liable for the harassment he received as a result of his sexual orientation. The employer was found to have failed to investigate claims made by the employee about the harassment and accordingly failed to take any reasonably practicable steps to prevent the conduct. The Claimant also successfully claimed unfair dismissal after absence caused by the harassment lead to his demotion and subsequent dismissal.

The name calling and impersonating by employees was found by the Tribunal to be harassment on the basis that they violated the Claimant's dignity, and created an intimidating, hostile, degrading and humiliating environment - one of the offences as defined under Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003. The failure of the Respondent to prevent the harassment was found to be direct discrimination under Regulation 3, having failed to take the issue seriously - the Tribunal ruling that a homosexual employee suffering equivalent harassment would have had their problems and the behaviour addressed.

The Tribunal further went on to dismiss the Respondent's claim that it had taken reasonable steps, finding that the staff handbook's equal opportunities policy made no mention of sexual orientation, and that none of the Respondent's staff had received any equal opportunities training.

The Tribunal awarded the Claimant £16,000 for the discrimination and £7,500 for the unfair dismissal. The case is a good example of the potential cost to employers of not taking complaints seriously as well as the need to regularly review and update employment policies and where possible provide staff with equal opportunities training.

If you would like information about steeles training services please contact Alison Davies on 020 7421 1723 or at lonemp@steeleslaw.co.uk.

Disability Discrimination
WHEN SHOULD YOU CONSIDER REASONABLE ADJUSTMENTS?

In the case of Home Office v Collins the Court of Appeal has determined that an employer who dismissed an employee because of their sickness absence record did not fail to make reasonable adjustments for the purposes of the Disability Discrimination legislation. This was because the employee was not ready to return to work and had not indicated as such, therefore, there was no need for the employer to consider a phased return to work on a part-time basis.

The employee (C) was an insulin dependant diabetic. C had a 12-month probationary period. During the probationary C was absent from work as a result of her diabetes for a large number of days. As such C's employer, the Home Office, extended her probationary period and informed her that they would continue to monitor her sickness absence. As a result of comments made about C's sickness absence C was certified unfit for work sick with stress and depression. C never returned to work.

During this period of sickness absence C's probationary period was extended on a number of occasions and she was assessed by occupational health. When C failed to return to work after a further extension of her probationary period she was sent a warning dismissal letter and asked to attend a further occupational health meeting. The report stated that C was suffering from anxiety which related to her diabetes but that progress was being made and that she would be able to return to work on a part-time basis in three to six months.

C's employment was terminated two month's later as a result of her absenteeism.

C presented a claim for disability discrimination on the basis that her employer had neglected to consider the possibility of a phased return to work and therefore the Home Office had failed in its duty to make reasonable adjustments.

The Tribunal dismissed the complaint on the basis that the Home Office was correct not to consider a phased return to work until they had a date for C's return. The duty did not extend to considering this option when at all times C was actually certified as unfit for work. The EAT disagreed with this and reversed the decision.

The Court of Appeal held that since C had not at any time been ready and able to return to work on a part-time basis, consideration of a return to work on a part-time basis was not a reasonable adjustment for the employer to have made.

The duty to make reasonable adjustments only arises where the adjustments will remove the disadvantage - in this case it was not applicable as the employee could not return to work.

Employment Law Update Seminar

Employment law continues to develop each year at a rapid pace and 2005 has been no exception, with a number of significant case law and legislative developments. These changes have wide ranging implications for all employers.

steeles' Employment Law Update seminar will focus on the most recent employment law developments so that HR practitioners can keep right up to date with the legal issues which affect their day-to-day work. We aim to identify for you the practical implications of these changes as far as your business or organisation is concerned.

We will review the following areas:

• Discrimination
• Holiday Pay & Working Time
• Redundancy; Compromise Agreements
• Agency Workers
• Transfer of Undertakings
• Data Protection
• Plus an overview of the developments to look out for in 2006.

This morning seminar takes place on Tuesday 4 October at Broadway House, Tothill Street, London, SW1H 9NQ. The seminar has a 9.00 for 9.30am start and will conclude no later than 1.00pm and costs £50 + vat. To reserve your place call Beth Wilson on 0870 60 90 200 or book online

This article copyright © 2005 Steeles Law llp. All rights reserved.